Lower Court Compliance with Precedent: Sara C. Benesh and Wendy L. Martinek
Americans appear to be complacent in the belief that the courts-and the U.S. Supreme Court in particular-constitute a powerful branch of government. We rarely consider the degree to which the courts actually possess power, and the public continues to come to the courts with its problems assuming that an effective judicial remedy will be forthcoming (Scheingold 2004). Indeed, some even lament the “excessive power” that this unelected branch wields in society (Ely 1980). However, as Hamilton famously put it, the Court has “no influence over either the sword or the purse . . . It may truly be said to have neither force nor will, but merely judgment” (Hamilton). Though there is a Supreme Court police force, the mission of that force is to protect the justices, the Court, and visitors to the Court, not to compel other actors to follow the will of the Court.1 In other words, the Court makes decisions but those decisions are not self-executing; the Court’s rulings are given effect only through the actions of others, and the reaction of those other actors is not always perfectly in concert with the Court’s rulings (Baum 2002). This is reflected in the famous quote attributed to President Andrew Jackson regarding a decision of the Court under Chief Justice Marshall: “John Marshall has made his decision, now let him enforce it!” The historical evidence indicates that Jackson made no such statement (Boller and George 1989, 53). However, it persists in the political folklore, certainly in part because it reflects the Court’s predicament when it comes to enforcement of its decisions (if not the accuracy of the president’s words). How, then, in the absence of the usual carrots and sticks relied upon to induce others to “fall in line,” has the Supreme Court become such a significant player in American politics? How does it have impact in American society? Our focus in this chapter is on one key dimension of the Court’s power: its ability to induce lower courts to abide by its precedents, hence increasing its influence and impact. As a preliminary matter, we note that the question of what impact the Supreme Court has is certainly much broader than the extent to which the nation’s high court can command lower court compliance. Understanding the impact of the Court requires understanding the ability of the Court to exert influence in society writ large.2 Accordingly, alternative foci
for the study of the Court’s impact include, for example, the Court’s influence on congressional behavior (Martin 2001), the development and administration of higher education admissions policies (Taylor, Haynie, and Sill 2008), or the presence of small-town displays of religious symbols in late December (Segal, Spaeth, and Benesh 2005, 368).3 Scholars vigorously debate whether the Court can indeed exert a broad impact in society given its enforcement challenges (Hall 2011; Rosenberg 2008; cf. McCann 1994), and some even suggest that the Court, when it makes controversial decisions in a given issue area, can make matters worse by creating a backlash (Keck 2009). Nonetheless, lower court compliance certainly affects Supreme Court impact-without compliance by lower courts and other actors affected by Supreme Court decisions and without their responsiveness to changes in Supreme Court doctrine, the Court can have no impact.4 Thus, the appeal of focusing on lower court compliance lies in the fact that the lower courts constitute “the first link in the chain of events that gives a judicial decision its impact” (Canon and Johnson 1999, 29). We begin our consideration of compliance by examining the leading models of lower court compliance. We then discuss the legitimacy of the Supreme Court and its power as derived from that support, considering the extent to which the mere moral force of Supreme Court authority might compel compliance with its rulings by the lower state and federal courts, its most important of agents. Our inquiry is ultimately directed at the compelling question of whether it is inevitable that the lower courts will faithfully implement the precedents of the Supreme Court.