Volume 2, No. 5 (May, 1992) pp. 78-82
DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT by H W. Perry, Jr. Cambridge, Massachusetts: Harvard University Press, 1991. 316 pp. Cloth $39.95.
Reviewed by Gregory A. Caldeira, Department of Political Science, Ohio State University.
For a number of years, teased by various papers and presentations at conferences, political scientists who study the Court have eagerly awaited the publication of H. W. Perry's work on the selection of cases. Those who read this volume will not be disappointed. DECIDING TO DECIDE clearly lives up to its advanced billing as a major work on the Supreme Court as a political institution. It is well-written, carefully and prodigiously researched, and obviously the product of a great deal of reflection not only about the Court in particular but also about human institutions more generally. Perry has proved what some have suspected, most doubted, and few tried: it is possible to do widespread and effective personal interviewing at and around the Supreme Court.
Over the years a number of political scientists have explored various aspects of case selection in the Court -- some in statistical analyses, others in archival work, and still others from public records. My quick count of papers, chapters, and books cited in recent works yielded nearly twenty entries. Few law professors have tackled this important question, although Estreicher and Sexton's REDEFINING THE SUPREME COURT'S ROLE and Arthur Hellman's several articles are important exceptions. To be sure, Robert Stern and Eugene Gressman's (now with Steven Shapiro) SUPREME COURT PRACTICE (first published in 1950) has an excellent treatment of case selection -- accurate, complete, and astute. Indeed, much of what Stern and Gressman's volume says about case selection -- hard-nosed, realistic appraisals -- would warm the hearts of the most jaundiced political scientists. In the last twenty years, the Court's agenda has at times become something of an issue -- when Chief Justice Burger and others proposed to divert cases to a new court to stem the rising tide and more recently when the Court has substantially reduced the number of cases decided on the merits each term.
H. W. Perry has taken the bull by the horns and used interviews with critical participants -- justices, clerks, judges, leaders and staff in the Office of the Solicitor General -- as well as some data on cases to create an overall description and account of the process of case selection. As an undergraduate at Harvard, Robert Benchley reportedly wrote an answer in response to an examination on the law of the sea from the perspective of the fish. In a similar sense, Perry has written a book on case selection largely, but not entirely, from the vantage of the selectors -- a point to which I return later in this review. He interviewed at length five justices, sixty four current and former law clerks, seven judges on the federal court of appeals, four persons from the Office of the Solicitor General, and an individual from the Clerk's Office. From what we can tell, he pursued a very general list of questions, picking up on promising lines of inquiry as respondents permitted. He sought to elicit the participants' views of "how things work" at the Court and in particular to take their versions of these things very seriously, although not at face value. The technique resembles the kind of research often done on Congress -- broad personal interviews as a method of mapping out practices and norms and trying to account for apparent patterns.
To my knowledge, only a handful of political scientists have done more than a few interviews at the Supreme Court. Most scholars have probably assumed that it is impossible to gain access in this fashion to the Court. Of course, a number of journalists have mined sources at the Court, and Woodward and Armstrong's THE BRETHREN showed abundant -- some said, too abundant -- evidence of a large number of interviews and other materials from the inside. It is unclear whether any political scientist had attempted
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anything on the scale of H. W. Perry's effort; obviously no one else has succeeded. At any rate, Perry's successful penetration of the Court stands as an important landmark in the development of research in our field. It is impossible not to admire the nerve, tenacity, and diplomacy required in such an undertaking. His work shows how just about anything is possible if one has the energy, ambition, and skills. Everyone talks to everyone else in this intimate network of justices, clerks, former clerks, and veterans of the SG's office, so Perry's project had the potential, especially in the early stages, of blowing up in response to a poorly chosen word or phrase or through the bad luck of running into the wrong person at the wrong time. It is not research for the faint of heart.
Perry takes issue with the general tenor of previous work in political science on case selection in the Court. By Perry's reckoning, most of these studies view "votes on certiorari [as] preliminary, strategic judgments on the merits. . . . [D]eciding whether a case deserves review depends upon . . . whether the justices believes that the case was correctly decided in the court below, and . . . whether a strategic calculation leads the justice to believe that he will win on the merits should the Court agree to hear the case" (Perry, 12). From his personal interviews in and around the Court, Perry argues for less of the political scientist's "strategy" and more of the lawyer's law: "Decisions on cert. often have nothing to do with a calculation of expected outcome on the merits" (Perry, 15). Strategic behavior is the exception and careful legal analysis the rule. Thus political scientists who have written on case selection have placed too great an emphasis on political manipulation, strategy, and tactical behavior and largely ignored the shared lawyerly norms about how to decide the bulk of the cases on the Court's docket. We ought, in Perry's view, to study and take more seriously the language and concepts of lawyers and judges in this process. Things like rules, procedures, and jurisdiction actually shape the actions of participants in case selection much of the time.
Perry renders case selection as a "lexicographic decision process, . . . , a process of decisional steps or gates through which a case must successfully pass before it will be accepted" (Perry, 16). This process is a series of steps and two different channels. Depending upon the judge and case, a justice will follow one route or the other. In one channel, if he or she has a strong interest in a case, a justice will focus on the outcome on the merits. In the other channel, lacking significant interest, a justice will use jurisprudential criteria. "All justices will use both modes" (Perry, 16).
Chapter Two provides a handy and nicely condensed version of the jurisdiction and procedures of the Court, mostly based on Stern and Gressman's SUPREME COURT PRACTICE. The third and fourth chapters contain a detailed description of the daily patterns of work within the Court in case selection. Perry then moves to a conceptualization of the characteristics of cases -- often called "cues" in prior work -- as "indices" and "signals," information transmitted to the Court. Activities of the clerks and justices inside and between chambers take up a pair of chapters. Do the justices and clerks engage in the sort of bargaining and strategic behavior so vividly portrayed in Walter Murphy's ELEMENTS OF JUDICIAL STRATEGY? The next chapter develops and illustrates the criteria for "certworthiness" on the Court. Last but not least, Perry lays out his model of agenda setting -- a lexicographic model of alternative routes to choice.
Perry has provided a rich and fascinating description of how the Court selects cases and given us considerable insight into the rest of its operations. This book holds innumerable nuggets, large and small, about the details and daily workings in the formation of the agenda. In many instances, Perry introduces unknown aspects of the process; in others, he provides corroboration of conventional wisdom; and in still others, he dispels myths or half-truths. The descriptive material paint a rich and usually convincing portrait of the Court, and much of what Perry makes of his data makes good sense to me. Anyone who studies the Court for a living will want to pore over this book with care and then return to it again and again. And those who have only a passing interest in the Court -- perhaps students of national politics -- will find it an accessible and rewarding enlightenment about the labyrinths of the judicial process.
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But this is more than a book about the Court. It is a study of organizational behavior, of decision-making, and of agenda- setting. Perry does not press any of these concerns, but I think scholars in those areas of inquiry will find much of interest in DECIDING TO DECIDE. From my perspective, students of the courts too seldom do what Perry has done: adopt the approaches, methods, and theories of related subfields; apply them to our data; and then contribute to our understanding not only of courts but of more general phenomena.
Personal interviews, as Perry clearly realizes, portray one version of reality; and, like other forms of data, generate problems and pitfalls for the researcher. He has avoided one of the major, among many problems, of THE BRETHREN: exaggerated portrayals of the influence of law clerks based on the testimony of law clerks. We get all sides of the story from the insiders. And he has balanced, weighed, and compared different versions of the process. Nevertheless, it is the story from insiders, and as such it is only a part of the larger story. Participants are often inaccurate and unperceptive observers and analysts of their own environment. To remind myself of this point, on occasion I will ask a colleague or two how basic departmental processes work, how we make decisions, and what the rules say; and I am amazed each time at how inaccurate are their versions of these basic facets of our lives. Perry himself has caught his respondents in a number of errors. A number of the respondents's descriptions of the workings of the Court do not square with my own research in the private papers of justices who served during this and earlier periods.
Perry's description of the discuss list is a good example of the difficulties of personal interviews as a primary technique. For example, one of the clerks thought the discuss list moved hierarchically through the Court. Most of the respondents characterize it as a neutral, administrative procedure: the Chief Justice places on the discuss list all of those cases the Court ought to consider, anticipating the preferences of colleagues. Other justices contribute additional cases. A few respondents perceived manipulation on the part of Chief Justice Burger. But the paper trail from archival research leads to a somewhat different conclusion. During the years of the Burger Court, the Chief Justice's list of cases constituted only the start of a free- wheeling process in which others added many, many cases. Often the Chief's list composed only half of those ultimately discussed. If Chief Justice Burger was trying to anticipate the wishes of colleagues or to manipulate the process, he did an exceedingly poor job. During the years of the Warren Court, the brethren rarely challenged the Chief's initial list for discussion. Personal interviews did not pick up this important change or significant features of the process during the later 1970s. The point is not to eschew interviews, but, rather, to illustrate the importance of multiple sources of data as we try to piece together how the Supreme Court works. "Triangulation" of sources of data ought to be our watchword, especially if a researcher relies heavily on personal interviews.
Of course, we do what we can to avoid factual errors, and Perry has checked and re-checked where and when he could. At a more fundamental level, however, the insiders do not give us a sense of the large forces at work in the selection of cases. From the quotations presented and from Perry's commentary, we gain little feeling for the large issues at stake, the contending political, social, and economic forces at work in the suits before the Court. Others can draw their own impressions, but my take on Perry's version of the Court in case selection is of an extraordinarily autonomous institution, largely unfettered by external connections. Justices and clerks go about their business in nine separate chambers, usually using legal criteria and sometimes engaged in strategic behavior; and then the Conference adds up the individual choices and announces a collective outcome. These participants make choices largely, if not entirely, unmolested by actors outside the institution. The Solicitor General is an exception, but even he and his associates are essentially insiders.
I do not see a Court or a process of case selection as autonomous as the description Perry and his respondents offer us. In my view, litigants -- interest groups, governments, public interest law firms,
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corporations, high-powered lawyers, and others -- play a large role in shaping the agenda of the Supreme Court. Of course, the Court, like the other national institutions, enjoys a large measure of autonomy. It makes its own decisions, sends signals to litigants, and has the capacity to cut off and initiate issues for litigation. And, as a matter of law, the Court can hear or not hear cases as it sees fit. Yet we should not underestimate the importance of the choices of litigants, organizations, and lawyers. To be sure, the actions of the Court motivate and constrain the choices of litigants, but organizations respond to many other considerations, such as the demands of members, and their responses in turn shape the options of the Court. Repeat litigators and litigants often develop sophisticated systems of selecting cases for filing petitions for certiorari. Thus, before the Supreme Court sees a case, it has often gone through multiple screenings. My reading of the many fine case studies of campaigns of litigation before the Court compels me to the conclusion that the choices and actions of litigants really do make a difference in the Court. I take this as something of an article of faith, but I also think we have a good deal of hard evidence on this point. Now, I do not mean to imply that Perry does not know all of these things; and I do not mean that he ought to have written a different book. I simply wish to make a point about the cumulative impression of this book. Others may read it differently. The source of the data -- inside participants -- may have as much to do with this impression as any conviction of Perry's about the autonomy of the Court's decisional processes. Had he interviewed litigators in interest groups, we might well have come away from this book with a somewhat different sense of the Court.
I came away confused about Perry's theoretical commitments. This point hard to pin down, for Perry is modest in his theoretical claims. He seems to offer his lexicographic model more as one plausible hypothesis about how case selection works than as testable set of propositions. This model is really the result of Perry's impressions, based on interviews, guided in a general sense by theories of organizations. Unfortunately, I do not see as a practical matter how one could test it. For my money, the ability -- in principle at least -- to test a proposition or set of hypotheses remains at the heart of our enterprise. I am not at all sure what would constitute clear and convincing evidence in support of Perry's conception of case selection. The chief variable, strong interest in a particular case, is, as a practical matter, unmeasurable. Salience of a type of case or issue might well raise the degree of scrutiny a justice or clerk gives to a case, but I am dubious about the serial nature of the decisional process Perry outlines. The research I have done, and much of the evidence Perry presents, suggests a much less orderly process of thought. Law clerks go through something of a standard list of criteria in preparing a memorandum for a petition on certiorari, but I do not see the method of reasoning in these documents as a sequential process. Any one of a number of criteria might, in a particular case, weigh heavily enough in the minds of a clerk and a justice to motivate a recommendation and a vote in favor of certiorari. Many cases reach a decision on the merits absent any of the indicators high in the priority of Perry's model -- e.g., intercircuit conflict, dissent in the court below, or a brief amicus curiae. In many of those I have read, the clerk's rationale for a grant turned on the importance of the case and its appropriateness as a vehicle for pushing forward the justice's policy preferences.
Perry's models of choice imply a more general theory of how people process information. His discussions of how the Court selects cases and especially his formulation of the two modes of choice brought to my mind the contemporary work on social cognition in psychology and political science. And yet Perry does not tie his models explicitly to any theories of information-processing, social cognition, or behavioral decision, or rational choice. Early in the book, Perry treats a number of characteristics of cases as signals or indices, ideas and concepts taken from the economics of information. The discussion of signaling suggests a commitment to a fairly strong version of rational choice. Later on in the book, he adopts Mohr's categories of modes of organizational decision-making more or less intact. In the detailed rendition of the lexicographic model, Perry portrays justices as pursuers of policy goals in a small subset of cases and jurisprudes in the lion's share of the caseload. The former sounds like maximizing to me, the latter much like satisficing. Nevertheless, following Mohr, he characterizes the modes of choice as rational (persuasion, reasoning) in
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contrast to satisficing (bargaining, logrolling). He seems to mix the issue of the cognitive capacities of the justices with the methods of decision used. The terminology, together with the presentations of a signaling model in one place and a mixed decision-model in another, create unnecessary confusion.
Perry says the justices are not strategic most of the time because they decide the great bulk of the cases on jurisprudential criteria. Most of the petitions for certiorari filed in the Court lack plausibility, as Perry notes and as anyone who has read significant numbers of them will readily attest. Even a layman can discern the failure to state a claim the Court might take seriously. So the justices, or their clerks, will flip through these petitions, apply jurisprudential criteria, and then vote to deny certiorari -- regardless of the ideological impact of the outcome. For Perry, the consensual application of jurisprudential criteria in these cases goes a long way toward undermining any notions we might harbor of strategic justices in case selection. But why would a justice bent on influencing the shape of judicial policy devote resources to an inappropriate legal vehicle? No matter what he or she might do, the Court during the late 1970s would decide only 150 or so cases on the merits. Perforce, a strategic justice should have held back on weak legal vehicles and pushed hard on the cases stronger in a legal sense and in the sense of his or her preferences. Unfortunately, some prior work on certiorari did not distinguish much, if at all, between the considerations in case selection and on the merits. Considerations at the two stages are, of course, quite different. In my view, a justice who wishes to advance his or her views of public policy ought to vote for a case he or she would like to reverse on the merits -- if the case meets the criterion of "importance." Importance is a function of jurisprudential considerations and social, political, and economic impact.
Finally, I have two minor points. First of all, I think Perry lets lawyers and political scientists in other fields off the hook much too easily. He says political scientists have paid too little attention to law, rules, and procedure. And yet the record will, I think, show: those who do empirical studies of the courts have paid more attention to rules, doctrines, and substance than just about any other set of political scientists. How many students of Congress have read a statute? How many have read the rules of the House and Senate? Even in the salad days of multidimensional scaling, students of the courts knew doctrine and rules. It was and continues to be one of our great strengths. One of the chief reasons some political scientists have taken such a jaundiced view of law, rules, and the like is the tendency of lawyers, law professors, and judges to throw up smoke screens of legal mumbo jumbo as a means of protecting their occupational interests. To understand a political institution, we need to understand its language and modes of thinking, but we also ought to subject what its members say to a skeptical eye -- or, as one justice said, wash it with a cynical acid. Personally, I continue to view clearing away the nonsense from what lawyers and judges say about courts as one of our chief jobs as political scientists.
On the second point, I confess a conflict of interest as a partner in crime in the business of research on case selection in the Court. Nevertheless, I cannot help but describe Perry's review of prior work on certiorari as uneven. Some of those who wrote on certiorari have given short shrift to jurisprudential considerations; others have not. Perry conjures up a set of political scientists who do not know enough law for their own good and who see a set of justices engaged in bargaining and strategizing on every case. He uses this version of prior work as a handy point of departure. Yet I think this reactive posture may actually detract just a tad from the flow of this book. I do not wish to press this point much; arguments about who said what get us nowhere, and we ought to direct our energies to more profitable enterprises. He has made a unique contribution here. He has told a fascinating, compelling story about the rich and complex process of choice in the Supreme Court. Its strength does not rise and fall on what went before.
Now I hasten to add: none of these criticisms undermine the importance of the fine book. Rather, they demonstrate the importance of the issues joined and the compelling and provocative nature of the arguments Perry offers in DECIDING TO DECIDE. It richly deserves all of the praise it is likely to receive.