Vol. 17 No. 8 (August, 2007) pp.701-704
ANSWERING THE CALL OF THE COURT: HOW JUSTICES AND LITIGANTS SET THE SUPREME COURT AGENDA, by Vanessa A. Baird. Charlottesville, VA: University of Virginia Press. 2007. 240pp. Cloth $45.00. ISBN: 9780813925820.
Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email: paul.chen [at] wwu.edu.
Vanessa Baird’s ANSWERING THE CALL OF THE COURT, “the first scholarly attempt to connect litigants’ strategies with the aggregate policy trends on the U.S. Supreme Court’s agenda” (p.3), has two objectives. The first is to show systematically and empirically that the policy preferences of Supreme Court justices have an impact on the cases that appear on the Court’s agenda. Baird’s contribution in this area is in identifying a consistent four- or five-year lag from the time when justices indicate a policy priority (as measured by various indicators) to the time when cases litigated by “policy entrepreneurs” in response to those indicators appear on the Court’s agenda. This periodicity is generalizable across eleven policy areas that she examines in Chapter 4.
The book’s other objective is theoretical: Baird argues that, but for the strategic behavior of policy entrepreneurs who invest their resources to bring cases in response to the indications of justices’ policy preferences, the “right cases” would not appear on the Court’s agenda, thus limiting the Court’s ability to engage in comprehensive policy making. This “symbiotic relationship” between justices and policy entrepreneurs is a key component of the agenda-setting process.
The linchpin in the causal mechanism, and Baird’s main theoretical contribution, is how the strategic behavior of policy entrepreneurs translates the policy preferences of the justices into the Court’s agenda and into public policy. The process is as follows: First, justices engage in behavior which is interpreted by policy entrepreneurs as indicating the justices’ policy priorities (that is, in what policy areas the justices are interested). Next, policy entrepreneurs engage in strategic behavior by relying on their perceptions of the justices’ policy priorities, which gives them information, albeit limited, to use when investing their resources to sponsor cases they believe are more likely to be reviewed by the Court. Finally, justices on the Court are more likely to select those cases brought by policy entrepreneurs for review, thereby increasing the Court’s policy-making capacity. What Baird wants readers to get out of her book is that “the symbiotic relationship helps strengthen both the justices and the litigants’ power over political and legal outcomes” (p.42).
In Chapters 1 and 2, Baird situates her research in the agenda-setting literature, and reviews previous studies on which her theory is based. Chapter 3 recounts the story of successful litigation brought by the Mexican American Legal Defense Fund to illustrate “how previous cases from the Supreme Court help litigants structure their legal arguments” (p.81). In Chapter 4, Baird shows systematically [*702] that across eleven different policy areas, there is a consistent four- or five-year lag in the Court’s agenda cycle, from the time that justices indicate their interest in a particular policy area to when cases prompted by those indications show up on the Court’s agenda. She admits the oddity of such a regular pattern: “Since there are so many different kinds of information and so many kinds of responses, it seems odd to think that the combination of so much anarchy could lead to measurable systematic patterns on the Supreme Court’s agenda. But this is exactly what I am suggesting” (p.9).
In Chapter 5, Baird supports her argument that policy entrepreneurs bring more cases and of higher quality to the Court’s agenda in response to justices’ indications of which policy areas they see as important by using several “corroborative hypotheses.” She shows that cases sponsored by policy entrepreneurs have proportionally more amicus curiae briefs filed with the Supreme Court, and proportionally more separate opinions written at both the Supreme Court and Court of Appeals levels. These cases are also decided by narrower majorities (i.e., 5-4, 6-3). These findings, she argues, show that these cases “are more politically important in the eyes of both justices and interest groups” (p.13).
In Chapter 6, Baird explains the median justice theory, drawing an illustration from abortion litigation. She then shows how the response of litigants to the justices’ policy priorities leads to a gradual increase in closely divided decisions, peaking in the fourth year. The narrower margin is consistent with the median justice theory, while their gradual appearance leading up to the fourth year is consistent with her findings discussed in Chapter 4.
Previous studies, primarily case studies and other qualitative analyses, have shown that Supreme Court justices do provide information via signals to various audiences, including what issues they would like to review in future cases (e.g., Perry 1991; Pacelle 1991; Hausegger and Baum 1999). Baird provides a systematic empirical basis for the influence of the justices’ policy preferences on the Supreme Court’s agenda, and attempts to specify the causal mechanism by which the justices’ policy preferences are converted into cases that appear on the Court’s agenda. She uses both statistical and qualitative analyses to persuade her readers of the critical role that policy entrepreneurs play in the agenda-setting process.
Although her statistical analysis cannot tell what types of litigants, if any in particular, are primarily responsible for causing the aggregate changes in the Court’s agenda, based on earlier studies that suggest that “interest groups are at the center of the process,” Baird concludes “it is likely that interest groups drive much of the change in litigation patterns” (p.182). She is careful, however, to qualify that, recognizing that even absent any interest group litigation, cases would still appear before the Court. Nevertheless, she maintains that “the patterns of influence that the Supreme Court has wielded over public policies appear to have depended significantly on cases that have been supported by policy entrepreneurs [*703] reacting to those previous decisions” (p.183).
An inherent limitation in this analysis is that it may be time-bound. Her data come from the U.S. Supreme Court Judicial Database, covering all cases from 1953 to 2000. There is reason to believe that her theoretical argument might not apply before 1953, when interest group litigation was but a fraction of what it was to become after the “rights revolution” starting in the second half of the last century (Epp 1998). But if the four- or five-year lag in the Court’s policy-making cycles did persist before 1953, then the cause must be something other than interest groups. Even for post-1953 cases, Baird recognizes that “without direct evidence that strategic responses to these signals are responsible for the agenda changes, it is difficult” to support the claim that the perceptions of policy entrepreneurs drive their litigation strategies, which then influence the Court’s agenda (p.176).
Her empirical finding of the four- or five-year lag in the Court’s policy-making cycle, which “has never before been suggested or documented empirically” (p.99), begs for further study. The obvious question is: why? She admits that there is no reason for this regularity, considering the innumerable factors that affect a case’s getting all the way to the Supreme Court. Yet the periodicity is consistent across many policy areas.
Baird’s research arose out of her interest in the “judicialization of politics” phenomenon identified by Tate and Vallinder (1995) and others who asked: In light of courts becoming increasingly involved in resolving political issues, what causes these increases in judicial power (pp.3, 182)? Her theoretical argument attempts to fill in one piece of that very large and important puzzle. Throughout the book she carefully qualifies her conclusions, and recognizes the limitations of her analysis. As she humbly states, her book is “the beginning – not the end – of the story” (p.10).
Baird provides a systematic empirical basis for future research, as well as a compelling theoretical account of the influence that the justices have on the Supreme Court’s agenda, via the strategic behavior of policy entrepreneurs. Her theoretical argument is not about any particular justices or any particular policy entrepreneurs, but seeks to explain “aggregate policy outputs rather than . . . specific actors or cases” (pp.3, 41). She concedes that there are many “micro-processes left unanswered by the aggregate analysis” (p.141). Now that she has laid this groundwork, I believe more interesting studies focusing on individual groups and cases within specific legal and political contexts will give us a better understanding of the Court’s agenda-setting process.
Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press. [*704]
Hausegger, Lori, and Lawence Baum. 1999. “Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory Interpretation.” 43 AMERICAN JOURNAL OF POLITICAL SCIENCE 162-185.
Pacelle, Richard L. 1991. THE TRANSFORMATION OF THE SUPREME COURT’S AGENDA: FROM THE NEW DEAL TO THE REAGAN ADMINISTRATION. Boulder, CO: Westview Press.
Perry, H.W., Jr. 1991. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge, MA: Harvard University Press.
Tate, Neal C., and Torjbörn Vallinder. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University Press.
© Copyright 2007 by the author, Paul Chen.