Academic journal article Justice System Journal

Policy Windows on the U.S. Courts of Appeals*

Academic journal article Justice System Journal

Policy Windows on the U.S. Courts of Appeals*

Article excerpt

This article applies the concept of "policy windows" as developed by Kingdon to the federal courts of appeals, arguing that a policy window occurs on the court of appeals when a major Supreme Court precedent disrupts an existing body of law. To illustrate this approach, the article presents an in-depth case study of how the courts of appeals resolved one of the many legal ambiguities raised by Apprendi v. New Jersey (2000). Apprendi presents an excellent case for analysis because it signaled a potentially great disruption of standard sentencing practices in the federal courts, especially in federal drug sentencing. The case study indicates that the concept of policy windows may be applied fruitfully in future research.

Studying policymaking by the judges of the federal courts of appeals is complicated by their position in the federal judicial hierarchy. Judicial scholars generally agree that the policymaking discretion of circuit judges is limited to a subset of the cases such judges decide (see, e.g., Klein, 2002). Previous studies have found that circuit judges usually comply with existing Supreme Court precedent. But such studies have not generally addressed how circuit judges exercise policymaking discretion in responding to Supreme Court precedents. Judges may comply with a Supreme Court precedent narrowly, thus limiting its reach, or "enthusiastically," greatly expanding its reach (Canon and Johnson, 1999:37). Thus, judicial scholars should be concerned with more than whether circuit judges comply with vertical precedents. They should also be concerned with how circuit judges make policy of their own in response to new issues raised by vertical precedents.

This article argues that disruptive Supreme Court precedents create "policy windows" (Kingdon, 1995) that present circuit judges with opportunities for judicial policymaking. By "disruptive," I mean a precedent that unsettles a previously settled area of the law and, thus, raises a great number of issues to be resolved by the lower courts. To illustrate the utility of this approach, I examine courts of appeals policymaking after Apprendi v. New Jersey (2000), a precedent that substantially disrupted federal sentencing. The case study focuses on one of the many issues raised by Apprendi, namely, the applicability of the Apprendi rule to mandatory minimum sentences under the principal federal drug statute, 21 U.S.C. § 841. After discussing how Apprendi disrupted the previous legal status quo and created legal ambiguity on this point, the article analyzes how defense counsel brought this ambiguity to the attention of the judges of the courts of appeals by proposing new rules of law that would advance the interests of their clients. It then addresses how the judges of the courts of appeals decided this issue and made policy to govern sentencing procedures during the Apprendi policy window. The article examines decisions from the eight circuits that explicitly addressed this issue.

Unlike the justices of the Supreme Court, judges on the courts of appeals do not have the power to set their own agenda. Thus, Kingdon's agenda-setting model provides a useful model for reconsidering circuit judge decision making. The concept of policy windows enables one to focus on those periods when, because of a combination of factors, policy changes are likely to occur on the courts of appeals. This article seeks to contribute to the theoretical effort to explain circuit judge decision making by examining a situation that lacks the constraints that apply in routine cases.

Theory: Legal Ambiguity and Judicial Policymaking

Previous Studies

To study policymaking on the courts of appeals, one must identify the subset of cases in which circuit judges possess policymaking discretion (see Posner, 1996:313). Indeed, previous studies of circuit judge policymaking were often concerned with estimating how much policymaking discretion such judges possess rather than with studying policymaking per se. …

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