Academic journal article Law & Society Review

The U.S. Supreme Court's Incorporation and Interpretation of Precedent

Academic journal article Law & Society Review

The U.S. Supreme Court's Incorporation and Interpretation of Precedent

Article excerpt

What explains how and why the Supreme Court interprets precedent? We contend that Justices incorporate precedents into their opinions to maximize the extent to which the Court's legal policy reflects their own policy preferences and to increase the likelihood that their opinions will be efficacious. Thus, we expect the interpretation of precedent to be influenced by the Justices' policy preferences, the norm of stare decisis, and certain characteristics of precedents. To test this idea, we examined how, in all cases decided in the 1991 and 1995 terms, the Court's majority opinions chose to legally interpret the set of available Supreme Court precedents. While our results are not uniformly supportive of our hypotheses, they lend general support to our theoretical argument. First, we demonstrate that the Court is more likely to positively interpret (rather than not interpret) a precedent that is ideologically proximate to the Court, that is legally relevant, or that was previously positively interpreted by the Court. When considering negative treatment broadly construed, our data only demonstrate that the legal relevance of a precedent exerts any influence. However, when we restrict our analysis to "strong" negative interpretation of precedent, we uncover reasonable support for the influence of stare decisis in that both the legal relevance of precedent and prior negative interpretation of precedent affect strong negative treatment. Thus, one implication of this study is that, contrary to the attitudinal model's prediction, the Court's prior treatment of precedent does appear to influence the way Justices make decisions.

The explanation and prediction of Supreme Court policy outcomes endures as a topic of scholarly inquiry. For decades, scholars attempted to identify the factors that account for the disposition of Court cases, individual Justices' final votes on the merits, and aggregate patterns in Court outcomes (e.g., Baum 1988; Rohde & Spaeth 1976; Segal 1984). The policy set by the Court, however, is not solely, or even mainly, a function of case dispositions. While case dispositions determine who prevails in a particular dispute, the Court establishes legal policy through the legal rules or precedents developed in its majority opinions. These precedents set up referents for behavior by providing decisionmakers with information necessary to develop expectations and by outlining sanctions for noncompliance (see Spriggs 1996; Wahlbeck 1997). As a result, scholars recognize that the interpretation of precedent represents one of the Court's central policy outputs (e.g., Knight & Epstein 1996; Landes & Posner 1976).

Despite the acknowledged importance of precedent, few scholars have attempted to explain systematically how or why courts choose to interpret it. The literature on the quantitative study of precedent can be broadly divided into two parts. First, a variety of studies examine either the citation of court opinions (e.g., Friedman et al. 1981; Landes & Posner 1976; Merryman 1977) or patterns of citations among state courts (e.g., Caldeira 1985; Walsh 1997). These articles shed light, for example, on the conditions under which one court will cite the opinions of another court. This line of research, however, does not seek to explain how court opinions actually interpret precedents. Second, a handful of studies examine how the Supreme Court substantively treats its own precedents (e.g., Brenner & Spaeth 1995; Johnson 1985, 1986). For instance, Spriggs and Hansford (2001) show in part that the Supreme Court is more likely to overrule one of its precedents when it is either ideologically distant from the precedent or when the Court has previously interpreted the precedent in a negative manner. Yet, despite this insight into the Court's overruling of precedent, we have little understanding of why the Court more generally chooses to interpret precedent positively, negatively, or not at all. …

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