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.
Copyright 1992