Issue Fluidity And Agenda Setting On The United States Supreme Court

Of the nearly five thousand cases presented to the Supreme Court each year, less than 5 percent are granted review. How the Court sets its agenda, therefore, is perhaps as important as how it decides cases. H. W. Perry, Jr., takes the first hard look at the internal workings of the Supreme Court, illuminating its agenda-setting policies, procedures, and priorities as never before. He conveys a wealth of new information in clear prose and integrates insights he gathered in unprecedented interviews with five justices. For this unique study Perry also interviewed four U.S. solicitors general, several deputy solicitors general, seven judges on the D.C. Circuit Court of Appeals, and sixty-four former Supreme Court law clerks. The clerks and justices spoke frankly with Perry, and his skillful analysis of their responses is the mainspring of this book. His engaging report demystifies the Court, bringing it vividly to life for general readers--as well as political scientists and a wide spectrum of readers throughout the legal profession. Perry not only provides previously unpublished information on how the Court operates but also gives us a new way of thinking about the institution. Among his contributions is a decision-making model that is more convincing and persuasive than the standard model for explaining judicial behavior.

Much research is devoted to the decision-making power and precedent set by the Supreme Court. Less attention, however, is given to the strategic behavior during case selection. This book argues that case selection is done strategically, and by means of various criteria - influencing its constitutional position and importance.

When we think of judicial activism–the Court's role in making public policy–we often focus on individuals: the Robert Borks or Thurgood Marshalls of the times. In this book, Richard Pacelle explores the institutional judicial activism of the Supreme Court through the dramatic changes in its agenda as it has evolved from 1933 to the present. Once dominated by economic issues, the Supreme Court's agenda is now populated largely by cases involving individual rights and liberties. This shift is hardly accidental, Pacelle argues, and he offers quantitative as well as qualitative assessments of the means and motivations for change. Over 7,500 cases serve as the basis of analysis, and the narrative is amplified by informative appendixes: an explanation of the author's case taxonomy, a chronology of the Court's chief justices, a list of cases cited, and a digest of key cases. The systematic framework provided for tracing historical changes in the Supreme Court's agenda is the first of its kind and is sure to be valuable in future analyses and projections of coming change beyond the Rehnquist Court.

For decades, scholars have searched for data to show that Supreme Court justices are influenced not only by policy goals but also by legal considerations. Analyzing justices' agenda-setting decisions, we show that while justices are largely motivated by policy concerns, jurisprudential considerations can prevail over their policy goals. When policy goals and legal considerations collide, policy gives way. If legal considerations and policy goals align toward the same end, law liberates justices to pursue policy. In short, we find that at the intersection of law and politics, law is both a constraint on and an opportunity for justices.

In this dissertation I develop and test a theory of legal change that views the U.S. Supreme Court as operating within a complex legal and political framework. I argue that the Court uses the process by which it decides cases as an institutional tool, allowing it to exert influence in the broader political and legal environment. The Court does this by allocating agenda space to specific types of issues over others, and also by articulating legal doctrine in its written opinions that helps to shape outcomes outside of the immediate case. I text the implications of this theory in the context of both the Court's agenda setting and its written opinions. I find evidence of influence in these contexts not only from the justices but also from a variety of policy entrepreneurs that have a stake in the outcomes on the Court.