Vol. 9 No. 5 (May 1999) pp. 201-203.

LITIGATING FEDERALISM: THE STATES BEFORE THE U.S. SUPREME COURT by Eric N. Waltenburg and Bill Swinford. Westport, CN: Greenwood Press, 1999. 176 pp.

Reviewed by Barbara Palmer, Department of Political Science, Southern Methodist University.

As frequent and as important as interest group participation is at the Supreme Court, we really know very little about why groups chose to litigate there. Scholars such as Greg Caldeira, Rorie Spill, and Christopher Zorn have pointed out that we have a great deal of descriptive knowledge about the patterns of amicus participation and excellent case studies on the sponsoring of litigation. Still, the larger question still remains: why do groups pursue their policy goals at the Supreme Court? Waltenburg and Swinford’s efforts are a step in the right direction. Over the last twenty years, states have become the most frequent and successful litigators at the Court, save for the solicitor general, a trend that makes states worthy of scholarly attention.

Waltenburg and Swinford’s purpose is to "develop a systematic and detailed understanding of state decisions to litigate in pursuit of their policy goals since 1954" (p. 4). Their principal argument is that "state decisions to engage the Court are profoundly influenced by their capacity to litigate, their interest in doing so, and their estimated likelihood of success; . . . states have increased their activities before the High Bench as they have won more often, and their increasing rates of success are coincident with the Republican appointments of conservative, federalist-oriented justices" (p. 7). To support this assertion, they draw from several sources of data on state participation rates as litigants and amici, including their own survey of offices of state attorneys general, and use a wide variety of methods, from qualitative assessments of the Court’s jurisprudence to highly sophisticated Box-Jenkins time series analysis.

They begin with an overview of the Supreme Court’s jurisprudence in the area of state regulatory powers and the Commerce Clause, tracing the Court decisions from the 1880s and the Court’s hostility towards federal attempts at regulation, through the New Deal and the infamous "switch" in WEST COAST HOTEL COMPANY V. PARRISH (1937). In 1968, however, another shift in the Court’s jurisprudence began after a series of conservative appointments to the high bench, signaling a "revival of the principles of dual federalism," (p. 17) culminating in NATIONAL LEAGUE OF CITIES V. USERY (1976). Since 1968, a pro-state bloc has emerged on the Court, ensuring states high rates of success with their claims.

Waltenburg and Swinford then set out to show that state success at the Supreme Court is not just a function of these conservative appointments, but more specifically, of the appointment of justices who were committed to the "essence of federalism," i.e. the explicit recognition that, "States have legitimate interests which the National Government is bound to respect even though its laws are supreme" (p. 38, n. 2). Conservatism as an ideology, the authors point out, is not inherently linked to support for state powers: "state policies can also fall victim to . . . conservative views because they generally target government power per se" (p. 26). Using Guttman scaling, they attempt to show that there is, in fact, an identifiable pro-state dimension that is distinct from a justice’s general ideological orientation. Moreover, those justices coming to the bench since 1968, such as Rehnquist and O’Connor, have not only been conservative, but also have tended to score higher on this independent measure of support for the "essence of federalism," giving states even more reason to believe that they will be successful with their claims.

As the Supreme Court grew more sympathetic to federalist claims, states began taking steps to improve their advocacy, namely increasing the staff support, expertise, and budgets of the offices of their attorneys general (AG). Up until the 1970s, "the states were horribly ineffective Supreme Court litigants" (p. 44). During the 1980s, however, not only did states began putting resources into their AGs' offices, but Chief Justice Warren Burger was instrumental in establishing the Supreme Court Project of the National Association of Attorneys General, which assists in preparing attorneys general for oral arguments and in the coordination of amicus briefs. As a result, the quality of litigation by states has increased substantially.

Based on a survey of 21 offices of state attorneys general, Waltenburg and Swinford suggest that state decisions to pursue their claims at the Supreme Court were largely a function of perceptions regarding the likelihood of success in a particular case, even after controlling for factors such as the position of the solicitor general and public opinion. With data from 1954 to 1989, they assess state participation rates as litigants and as amici at both the certiorari stage and merit stage, and find "a rapidly increasing level of participation in all its forms" (p. 57). There is, however, substantial variation between states in their appearances, related to state population, the amount of land owned by the national government in the state, and the institutional capacity of the attorney general’s office. One notable strategy that states have pursued is the coordination of amicus briefs, namely the signing of other states’ briefs in the development of coalitions. Although the authors’ survey indicated that states largely join each other’s briefs on a rather haphazard basis principally through the efforts of the Supreme Court Project, a cluster analysis suggests that there is some regional cohesion among those states that are willing to join each other’s amicus briefs.

Waltenburg and Swinford construct a time-series model of state participation and success from 1954 to 1989. Using a dynamic model that can account for a system of complex reciprocal relationships between states and the Court, they find that "the principal force precipitating both the improvement in the states’ rate of litigation success and their increased activity before the Court since 1969 is the emergence of the Republican Court" (p. 87). The authors then conduct a jurisprudential assessment of the Court during the 1994 to 1996 terms in 35 cases involving state autonomy issues and argue that the current Court is undoubtedly pro-state (Chapter 7). Ultimately, they conclude that, "Republican presidents configured a High Bench that contains a critical mass of justices whose aggregate conservatism and support for the states yields decisions in line with the states’ interests at a clip greater than any Court since 1936" (p. 121). Moreover, states are "well positioned to take advantage of this" (p. 123).

The authors used a wide variety of data and multiple methods of analysis to build support for their primary arguments. Unfortunately, much of the text is devoted to explaining the methodology, with very little discussion of the data itself or the results of their analyses. Chapter 3, for example, explores justices’ ideology and their distinct support for federalism. Over two pages are devoted to discussing measures and methods, three and half pages of tables are provided (with several more in the appendix), but there are only three paragraphs -- less than a page -- of discussion. Many of the tables are difficult to read, and basic information regarding their data, such as frequencies, is often left out. In addition, a great deal of emphasis throughout the book is placed on the policy preferences of the justices, yet no attention is payed to the possible variations in the policy preferences of the states, namely the partisanship of attorneys

general. This is not to say that any of their conclusions are incorrect. The problem may be just the opposite; there is much more in their data and analyses than has been fully explored.

Given its shortcomings, this book still contributes to our understanding of groups and their strategies before the Supreme Court. Scholars of Supreme Court decision making, interest groups, and state politics may find this work of interest. Ultimately, Waltenburg and Swinford’s effort suggests just how much farther we have to go in understanding what motivates groups to devote substantial resources towards pursuing their policy goals before the Supreme Court.

Copyright 1995