Academic journal article Political Research Quarterly

The Influence of Precedent on State Supreme Courts

Academic journal article Political Research Quarterly

The Influence of Precedent on State Supreme Courts

Article excerpt


Studies of policy making by courts need to examine the actual policy adopted in the majority opinion rather than studying votes. The authors examine the responsiveness of state supreme courts to precedents announced by the US Supreme Court by examining their treatment of the precedents in their opinions, testing the utility of precedent vitality versus the impact of ideological preferences. They find that the vitality of Supreme Court precedent is a strong predictor of the way in which the precedent is treated by state courts, even after controlling for ideological distance and institutional features of state court systems.


state courts, precedent treatment, implementation, lower court responsiveness

If adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent's validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent's underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.

Concurring opinion by C. J. Roberts in Citizens United v. Federal Election Commission (2010)

The conventional wisdom repeated in virtually all recent scholarship on appellate courts is that "judges make policy" (Segal and Spaeth 2002, 6). Yet while the policy-making role of courts is routinely cited as an important rationale for the social science study of courts, it remains true to this day that "the most theoretically rich and empirically robust studies by judicial scholars generally focus on explaining case outcomes (e.g., who wins or loses) or the behavior of individual justices" (Maltzman, Spriggs, and Wahlbeck 2000, 6). Most empirical studies give little attention to either the substance of policy or the process by which policy is made. In fact, one recent assessment notes that the "paucity of systematic theoretical or empirical studies that treat law as a variable to be explained" is striking (Hansford and Spriggs 2006, 3). While the myriad studies that examine whether the decisions of courts or the votes of the judges support "liberal" rather than "conservative" outcomes have some general relevance for the understanding of the policies produced by courts, an analysis with such a limited focus sheds little light on actual policy making. Appellate courts make policy with the content of their opinions that provide interpretations and rules (precedents) designed to guide and constrain the future actions of judges and other public officials. Characterizing those opinions as merely liberal or conservative inevitably misses much of the significance of the rules adopted and in some instances actually distorts the substance of the precedent adopted.

The major exception to this tendency of empirical research on the courts to ignore the actual policy content of decisions is a series of studies that investigate the implementation or "impact" of the policy decisions (i.e., precedents) announced by the US Supreme Court. These studies start with the premise that lower courts have a clear, legally enforceable obligation to faithfully follow and implement the precedents established by courts above them in the legal hierarchy. Most of these impact studies have involved qualitative assessments of whether the decisions of lower courts, including state supreme courts, are in compliance with the rule announced by specific prior decisions of the US Supreme Court (Songer 1988). While these studies do have the virtue of a focus on the policies adopted by the lower courts, they provide limited insight into the nature of the policy making involved in implementation.

The study of implementation of US Supreme Court decisions is an important field for study within judicial politics and political science more broadly. …

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