chapter  8
23 Pages

Supreme Court Agenda Setting: Policy Uncertainty and Legal Considerations: Ryan C. Black and Ryan J. Owens


On November 2, 1992, the National Organization for Women (NOW) requested that the U.S. Supreme Court exercise its discretionary agendasetting powers and review the lower court’s decision in NOW v. Scheidler (No. 92-780). NOW asked the Court to apply the Racketeer Influenced and Corrupt Organizations Act (RICO) against a group of abortion protestors who allegedly combined to drive them out of business. The issue was important for a host of financial and symbolic reasons. Racketeering, generally, is a form of organized crime that extorts money from businesses through means of intimidation or physical violence. If the courts allowed abortion protestors to be prosecuted under RICO, the symbolic effect would be negative for the pro-life cause. Just as importantly, if RICO was applied to pro-life groups, those groups would have to dip further into their finances to defend themselves against additional causes of action. Simply put, determining whether to apply RICO to pro-life groups had significant policy implications, and the Court’s decision to hear the case would therefore have profound consequences. When the justices met during their private conference to decide if they would hear the case, each of them faced significant uncertainty. If they voted to hear it, would they be a part of the Court majority that created precedent? Would the result reached by the Court generate a policy more favorable to them than the status quo? And what did the legal considerations involved in the case suggest? Before voting to grant review to this politically charged abortion case, justices needed to answer these questions. Our goal here is not to examine the Court’s abortion jurisprudence, nor is it to analyze how outside interests such as NOW influence the Court. These are topics that could, themselves, fill up numerous books. Instead, our goal is to explain the conditions under which justices set the Court’s agenda. We make three inter-related arguments. First, we argue that justices make probabilistic decisions when setting the Court’s agenda. They will cast their agenda votes based on the probability that the Court’s eventual decision will result in a more favorable policy than currently exists. Second, we argue that legal considerations, such as lower court conflict, judicial review, and legal importance influence justices’ agenda votes. Finally, and perhaps most importantly, we

argue that policy and legal considerations interactively influence justices’ agenda votes. When legal considerations and policy considerations point toward the same ends, a justice is freed up to follow her policy goals. But when the law points toward an outcome that the justice dislikes on policy grounds, she will often follow the law despite her policy misgivings. In short, we argue that policy and law jointly influence how justices set the Court’s agenda with policy sometimes giving way to law. Our results support our hypotheses. We find, first, that justices make predictions about likely policy outcomes and vote to grant review, in part, based on these predictions. More specifically, as a justice’s probability of being made better off by the Court’s merits decision increases, the justice becomes increasingly likely to vote to review the case. Second, we observe that legal considerations also influence whether justices review cases. The presence of important legal cues strongly drive up the probability that a justice votes to review a case. And, finally, we find that policy and law interact, with law oftentimes conditioning justices’ policy behavior. Even justices who disagree entirely with the expected policy outcome of a case will vote to review it. These findings, of course, shed light on the Court’s agenda-setting process, but they also highlight a broader aspect of judicial decision-making, something we discuss more fully in the conclusion. In what follows, we begin with a brief overview of the Court’s agenda setting, with the aim to let readers “look under the hood” of the process. We then provide a more detailed description of our theoretical argument and the hypotheses we derive from it. We next explain our data and results, and conclude with a discussion about Supreme Court agenda setting and judicial behavior more broadly.