Reactive Responses: The Complementary Role of Federal and State Courts

The recent revival of state constitutional law has contributedsignificantly to the development of a dynamic judicial federalism.While interaction between federal and state courts is hardlynovel, acknowledgments of reciprocity have occurred more frequentlythan in the past. The Burger Courts receptivity to state judicialactivism inaugurated an era marked by creativity as well ascooperation. Thus far, major departures from established practiceshave been limited to a readily identifiable and recurring numberof state courts. All the same, the case studies included inthis article range across a variety of factual contexts andexplore an impressive array of links, both explicit and implied,between the federal and state courts. A disquieting new requirement,introduced as the result of a 1983 Supreme Court decision, exactsof state judges an unambiguous declaration of reliance on independentstate grounds as the price of ensuring federal nonintervention.Whether judicial federalism will continue to flourish withinso confining a framework remains problematic.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two importantaspects of the Eleventh Amendment, which generally protectsstates from being sued in federal courts. First, the Court heldthat the Congress has power to abrogate states' immunity fromsuit—to subject states to suits in federal courts fordamages—under Congress' expansive commerce-clause power.Second, the Court made clear that such abrogation would be foundonly where the text of the statute itself, as distinct fromits legislative history, clearly and specifically so provided.This article describes these decisions, and analyzes some oftheir implications for judicial federalism.     

The Past and Future of the New Judicial Federalism

This article argues that the new judicial federalism, the increasedreliance by state judges on state declarations of rights tosecure rights unavailable under the U.S. Constitution, representsnot a return to an earlier federalism but rather something new.Although the basis for a state civil liberties jurisprudencehad long existed, the "discovery’ of state constitutionalguarantees did not occur until the Warren Court pioneered anapproach to civil liberties that state courts could emulate.This "discovery" has led to only intermittent reliance on stateguarantees. Nonetheless, it is unlikely that state judges willreturn to the total deference to federal rulings in civil libertiescases that characterized preceding decades.     

The Legal Order and the Administration of Federal and State Courts

The Nigerian Constitution of 1989 establishes a system of federaland state courts, but within a structure of unified federal-statejurisdiction from the federal and state high courts, to thefederal Court of Appeal, and to the national Supreme Court.Thus, both sets of courts exercise jurisdiction with respectto federal and state laws. Although this system mitigates certainfederal-state jurisdictional conflicts, it does not eliminatesuch conflicts. At the same time, however, the Constitutionalso provides for Sharia courts of appeal under Moslem law andfor customary-law courts of appeal, thus establishing a tripartitesystem of justice. Although this system seeks to accommodateNigeria's ethnic and religious diversity, it does raise problemsfor national unity, judicial uniformity, and equity in the administrationof civil and criminal justice.     

THE COURTS AND RISK ASSESSMENT1

In the past decade the federal courts have come to play an important role in reviewing agency decision-making on prospective risks. Questioning the conventional wisdom that judges are poorly equipped for the task, the authors outline the range of choices facing courts in such cases and contend that they cannot avoid making ultimate decisions on risk policy. However, recent Supreme Court cases on nuclear hazards and occupational benzene indicate narrowing of the scope for judicial review.     

Strategic Defiance and Compliance in the U.S. Courts of Appeals

Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal‐agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal‐agency theory.     

Dead or Alive? The Federalism Revolution and Its Meaning for Public Administration

Federalism jurisprudence shapes the powers that public administrators have to achieve policy priorities. Federalism, however, is neither static nor simplistic as a concept, and a proper understanding of the environment in which public administrators work rests on a careful analysis of U.S. Supreme Court decisions. The authors review claims that a 2005 decision, Gonzales v. Raich, terminated a federalism revolution that had been ushered in a decade earlier. Does Raich in fact mark the end of the Supreme Court's federalism doctrine? Analysis of this question clarifies whether the past and current Court has articulated any direction touching on administrators' powers at both the national and state levels. The authors argue that before the federalism revolution is declared dead or alive, public administration can better understand the realities of the Supreme Court's doctrinal boundaries by examining a more detailed analysis of jurisprudence for what is says about the foundations of federalism such as the commerce clause, Fourteenth Amendment, Tenth Amendment, Eleventh Amendment, spending clause, and statutory interpretation issues.     

The Supreme Court's New Constitutional Federalism: Implications for Public Administration

Since the early 1990s, the Supreme Court has been issuing decisions that, taken together, constitute a new judicial federalism. This effort is rearranging intergovernmental relations as we have known them for several decades. However, the boundaries of this new doctrine and its implications for public administration are not well understood. This article analyzes the principal constitutional bases for the Court's actions and gauges the balance of this new judicial federalism. It then sorts out the implications for public administration and projects where the Court may be going with this doctrine in the future.     

Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases

The record of the U.S. Supreme Court in decisions affectingfederal-state relations has been one of inconsistency betweenstates' rights and national supremacy. This inconsistency hasperplexed both legal and political science scholars who havehad great difficulty placing decision-making regarding federalismoutcomes by the Court in any sort of theoretical context. Contraryto much conventional wisdom, ideological preferences do notautomatically translate into federalism outcomes. We extendmodels of judicial decision-making in political environmentsby including state policy. State policy outcomes may be eithermore liberal or more conservative than the policy would be underfederal control. Thus, the ideological preferences of the justicesmay contradict their preferences toward nationalism or statesrights. Testing the model using 94 preemption cases, we findthat individual justices and most Courts are willing to sacrificetheir federalism values in the pursuit of some other policygoal. This finding has implications for both the federalismliterature and strategic models of Court behavior, as well asfor cases the Court is currently reviewing.     

The Separation of Powers, Court Curbing, and Judicial Legitimacy

A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.     

American Federalism: From Johnson to Bush

Intergovernmental developments for more than twenty-five yearshave produced a nation-centered federalism—strongly sofrom 1964 to 1978, somewhat less so from 1969–1988, anda little more so during the past two years. The reasons forthis fundamental systemic transformation include: (1) the demiseof the earlier, 150-year old, confederative party system andthe rise of a new political system with weak federative parties,but other more powerful political actors; (2) an operationaland local representational renaissance of the states, but alsoa concomitant decline of state and local political influencein Washington; (3) a steadily centralizing Supreme Court, withonly a few pro-state decisions until 1989; and (4) a rapid risein national preemptions and of a "new social regulation" thatwas aimed at state and local governments as much as at the privatesector, even as the states were used to implement them. Theonly real constraint on national activism since 1982 has beenbudget-driven federalism, not planned reform efforts. The currentsystem then requires political, representational, judicial,and constitutional reforms if the centralizing, cooptive, andpermissive features of contemporary federalism are to be corrected.     

The Burger Court and Younger Abstention: Enhancing the Role of State Courts in Constitutional Adjudication

An important determinant of federal balance is the degree ofstate court authority to decide federal constitutional issues.This study traces the development of the Younger abstentiondoctrine, one of the primary vehicles by which the Burger Courtrestricted federal court jurisdiction and enhanced the authorityof state courts in constitutional adjudication. The Youngerdoctrine was adopted by the Supreme Court in 1971 for reasonsof comity and equitable restraint. Throughout the Burger Courtyears, Younger was expanded from an initial denial of jurisdictionto litigants seeking injunctive relief in state criminal proceedings,to litigants in cases "akin" to criminal proceedings, and thento litigants in cases "important to state interests." By relyingon Younger abstention, the Burger Court has reduced the roleof the federal courts as the primary enforcement of U.S. constitutionalrights.     

The Federal Judiciary and Northern School Desegregation: Law, Politics, and Judicial Management

Using a three-tier analysis, this article examines how the interplayof political and legal factors has influenced the developmentof school desegregation policy in Michigan and Ohio. The authorconcludes, among other things, that the district courts, theSixth Circuit Court of Appeals, and the U.S. Supreme Court aresensitive to the influences of politics and legalism, but thatthe responses of the three kinds of federal courts are different.Recognizing a constitutional imperative to eradicate segregation,district courts have emphasized the participation of electedofficials and affected community groups in the remedial process.Because of isolation and low visibility, the Sixth Circuit hastended to pursue a more tenacious policy course than eitherthe district court or the Supreme Court. Meanwhile, the U.S.Supreme Court has generally championed the cause of local officialsby attempting to balance the interest of eliminating segregationwith that of protecting the integrity of state and local decisionmakers.     

Judges as agents of social change: Can the courts break the affordable housing deadlock in metropolitan areas?

Abstract

Nowhere is the chasm between the races more apparent than in the physical division of metropolitan areas between inner‐city poverty and suburban affluence. Thus far, public policy efforts to introduce metropolitan perspectives into local land use regulations have been unsuccessful. The series of New Jersey Mount Laurel decisions lays out a possible path for introducing comprehensive regional planning by deploying the constitutional power of state courts. Relying on the allied professions of economics and city planning, the New Jersey Supreme Court eliminated the legal barriers to affordable housing in the suburbs.

Questions have been raised over courts’ ability to reform local government powers, but many traditional objections to the effectiveness of judicial reform seem to have been overcome in the New Jersey litigations and legislations. State courts can play an indispensable role in solving regional land use problems if they secure the support of community leadership groups.     

Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals

Students of judicial behavior have increasingly turned to strategic accounts to understand judicial decision making. Scholarship on the Supreme Court and state high courts suggests that the decision to dissent is better understood in light of strategic considerations rather than simply reflecting ideological disagreement. We investigate whether these findings comport with behavior by judges on the U.S. Courts of Appeals. We develop a spatial model of the decision to dissent that incorporates both attitudinal and strategic elements and subject this model to empirical analysis. We find that ideological disagreement between a judge and the majority opinion writer is a more persuasive explanation of the decision to dissent than a strategic account in which a judge conditions a dissent on whether circuit intervention would obtain the judge's preferred outcome. Though we do not discount the existence of other types of strategic behavior on the Courts of Appeals, our research suggests that strategic accounts of dissenting behavior are not generalizable to all courts .     

Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999

At the heart of attitudinal and strategic explanations of judicialbehavior is the assumption that justices have policy preferences.In this paper we employ Markov chain Monte Carlo methods tofit a Bayesian measurement model of ideal points for all justicesserving on the U.S. Supreme Court from 1953 through 1999. Weare particularly interested in determining to what extent idealpoints of justices change throughout their tenure on the Court.This is important because judicial politics scholars oftentimesinvoke preference measures that are time invariant. To investigatepreference change, we posit a dynamic item response model thatallows ideal points to change systematically over time. Additionally,we introduce Bayesian methods for fitting multivariate dynamiclinear models to political scientists. Our results suggest thatmany justices do not have temporally constant ideal points.Moreover, our ideal point estimates outperform existing measuresand explain judicial behavior quite well across civil rights,civil liberties, economics, and federalism cases.     

Ideological Competition and Conflict in the Judicial Hierarchy

Circuit splits, or conflicting rules across multiple U.S. Courts of Appeals, have important policy implications and dramatic effects on Supreme Court case selection, yet we know little about the incentives ideological lower courts face when deciding whether to initiate conflict. This article develops a formal model of a judicial hierarchy where lower court judges are subject to review by a high court with distaste for unresolved conflict, termed “split-intolerance,” and with uncertain preferences over policy. Lower courts may compete by investing costly effort in legal quality to make their rules more attractive. In equilibrium, lower courts may initiate conflict even when the odds of success before the high court are remote. Surprisingly, lower courts grow more likely to create conflict as the high court's split-intolerance increases; however, split-intolerance can also incentivize greater lower court effort. I present qualitative evidence illustrating the model's explanatory power.     

REPRESENTATION, REAPPORTIONMENT, AND THE SUPREME COURT

Abstract. The reapportionment of congressional and state legislative districts occasioned by decennial censuses has generated intense political and judicial conflict. This conflict has made clearer several obstacles to a deeper understanding of the nature of representation. It has also led to the fashioning of a new equal protection jurisprudence by the Supreme Court in an attempt to grapple with apportionment disputes. The Court has established clear standards for redistricting congressional and state legislative seats. Yet after two decades, the Court has still not produced judicially manageable standards to deal with the problems of partisan gerrymandering, affirmative gerrymandering,'political fairness', and the Court's impact on public policy. A review of the pertinent cases makes it possible to forecast the probable outcome of litigation involving these issues in the 1980 round of reapportionments.     

The Norwegian Supreme Court and Equitable Considerations: Problematic Aspects of Legal Reasoning

Legitimacy, confidence and autonomy in the court system are dependent on people trusting the institution to make decisions based on predefined legal rules. Simultaneously, confidence in the system is also dependent on the system's capability to adjust to changes in values in society. The Norwegian courts appear to be increasingly basing their rulings on ‘equitable considerations’. This involves the making of decisions by reference not only to predefined rules – as expressed in structures or pre‐existing legal practice – but also to policy considerations such as utility and fairness. Judicial decisions made with reference to political considerations imply that the courts are arrogating a role that democratic theory reserves for legislators. What happens when ‘equitable considerations’ play a large part in the decisions of the Supreme Court? Does the institution have capabilities and mechanisms that sustain such a judicial practice as a legitimate form of law enforcement? I argue that the capability to adjust to changes in society only seems possible if the judges act beyond the domain of traditional judicial competence. Through different kinds of mechanisms, elements of ‘equitable considerations’ over time become hidden and difficult to grasp. On the one hand, this makes it possible for the Supreme Court to sustain a judicial practice as a legitimate form of law enforcement, but simultaneously it creates problems of confidence and legitimacy because the premises for the decisions are not explicated.