chapter  6
17 Pages

Patterns of Policy Making across State Supreme Courts SCOTT A . COMPARATO , SCOTT D . McCLURG , AND

In order to understand the differences in how state supreme courts apply precedent from the United States Supreme Court, it is first necessary to discuss the institutional structure of the court system. The hierarchical nature of the court system in the United States suggests that lower courts are bound to follow the dictates of those courts above them. The doctrine of stare decisis should provide some authority over the decisions of judges sitting on the same court over time, but it also requires that the decisions of higher courts be binding on those inferior courts in the system (but see Brenner and Spaeth 1995; Segal and Spaeth 1996, 1999, 2002). The question that arises in a system of this kind is whether, and under what conditions, lower courts make decisions that are inconsistent with the precedent of higher courts. As the highest court in the nation, the Supreme Court makes decisions that are binding on all lower courts, both federal and state. But, unlike Congress and the president, who are able to influence the behavior of agencies through the allocation of funds and personnel changes, the Supreme Court’s ability to “control” lower courts is substantially limited. The primary power available to the Court to enforce its decisions is the ability to review, and overturn, aberrant decisions of lower courts. Compounding the inherent difficulty in using such a blunt instrument to induce compliance among lower courts, the docket of the Supreme Court has shrunk to fewer than 100 cases a year, reducing the likelihood of review of aberrant lower court decisions. When viewed together, this implies that these lower courts may be able to determine legal standards that are the product, not of Supreme Court precedent, but of their own preferences. This is particularly true for state supreme courts. State supreme courts serve a dual role in interpreting both the United States Constitution as well as their own state constitutions, and taking primary responsibility for reconciling the two. Despite the fact that the Judiciary Act of 1789 gives the Supreme Court the right to review decisions of state supreme courts, justices on those courts do entertain a level of flexibility unknown to judges on the federal courts of appeals. State supreme courts generate, in absolute terms, far more decisions than do courts of appeals, making it more difficult for the Supreme Court to identify rulings that deviate from precedent. And lastly, one of the Supreme Court’s primary responsibilities is to review and maintain consistency among the federal courts, suggesting that they will be more attentive to the product of courts of appeals.7