Strategic Anticipation of Noncompliant Governors: State Supreme Court Behavior in Response to the Political Environment

By Schorpp, Susanne | Justice System Journal, September 1, 2012 | Go to article overview

Strategic Anticipation of Noncompliant Governors: State Supreme Court Behavior in Response to the Political Environment


Schorpp, Susanne, Justice System Journal


Separation-of-powers models of judicial decision making traditionally focus on the U.S. Supreme Court and the threat of policy reversal by the legislature and the executive. This article argues that strategic behavior by the courts vis-à-vis the other branches begins with a calculation of the probability of a noncompliant executive. That probability, in turn, changes according to the policy position of the executive and the public. The analysis of state-supreme-court decisions suggests that judges are constrained by their political environment and are likely to adjust their voting behavior to be closer to the governor and public opinion if both have different policy preferences from the court.

When South Carolina's governor Mark Sanford announced that he would reject part of the federal stimulus funds allocated to South Carolina, the legislature intended to stand against him. The fight over who had the last word in the acceptance of federal funds between the South Carolina legislature and the governor took a new turn when a South Carolina student-backed by liberal-interest players in the state- brought suit against Sanford to the state supreme court. Arguing that Sanford was disadvantaging South Carolina students by declining to accept federal funds reserved for education, the petitioner challenged the executive decision on legal grounds, prompting Governor Sanford to respond that the challenge was a "politically-driven press spectacle . . . rather than a suit with any actual merit."1

The above instance provides a very direct, albeit unusual example of conflicts of interest between courts and the executive. Though it is cases like these that generate our interest in the influence of executive interest on judicial decision making, the broader question is how the government structure of separation of powers with checks and balances works-or, rather, whether and under what conditions the "independent" branch takes the other branches' interest into consideration and is thus constrained in its decision making. These questions have gained in importance with the second and third waves of democracies as scholars are seeking to understand how structure determines behavior (Tate and Vallinder, 1995; Widner, 2001; Russell and O'Brien, 2001) and, thus, the advantages and disadvantages of too little (Helmke 2002, 2004) or too much autonomy (Hilbink, 2007) by the court.

Traditional studies of strategic behavior by judges focus on whether judges are constrained by the possibility of policy reversal by the executive and legislature. Anticipating a potential reversal, judges adjust their decision accordingly (Hansford and Damore, 2000; Eskridge, 1991; Segal, 1997; Spiller and Gely, 1992; Langer, 2003, 2002). Similarly, on the state level, studies of strategic behavior have placed the most emphasis on the impact of public opinion on judge selection to the bench (Brace and Hall, 1997; Hall and Brace, 1992; Hall, 1995, 2001; Hall and Brace, 1996; Huber and Gordon, 2004; Traut and Emmert, 1998) and on the threat of legislative override (Hall and Brace, 1992, 1996; Brace, Hall, and Langer, 1998; Langer, 2003). In contrast, the current study explores whether concerns about policy implementation lead judges to be constrained by the combination of executive preferences and public opinion. With the exception of a few studies on the legislature and the judiciary (Vanberg, 2006; Clark, 2009), the U.S. presidency and the U.S. Supreme Court (Yates and Whitford, 1998; Yates, 2002), as well as state government and state supreme courts (Brace, Hall, and Langer, 1998; Langer, 2003, 2002), work on the relationship between courts and other branches of government do not include public opinion. This article will contribute to understanding the impact of public opinion on the interbranch relationship of courts and the executive by offering a test on state supreme court behavior conditioned on the policy preferences of the executive and the public. …

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