Strategic choice of legal instruments in the United States Supreme Court
Part 1. Are the legal grounds underlying Supreme Court decisions strategically chosen? This paper makes three improvements to previous efforts to answer this question. One, I disaggregate the data by issue type, justice ideology, and time. Two, I investigate not just the effects of external political constraint on instrument choice, but also the effects of consistency between the direction of case outcome and justice ideology. Three, I use the Bailey (2007) ideology scores, which offer better scaling of Court and Congress estimates. I find that, between 1953 and 2002, external constraint is almost never associated with higher probability of constitutional instrument use, but that ideological consistency often is, especially for liberals deciding civil liberties cases.
Part 2. At what stage of the review process does the Supreme Court make its instrument choice - when disposing of a case on its merits, or when setting the Court agenda? Most of the cases heard by the Supreme Court 1953-2002 concern either constitutional or statutory provisions, not both, and thus offer only one instrument option. This suggests that agenda-setting is the main venue of strategic instrument choice. An analysis of Rehnquist Court cases finds that those predicted to have outcomes in line with justice ideological preferences contain a larger percentage of cases concerning constitutional provisions, even after controlling for issue area and cert rationale. This supports the idea that justices are more likely to grant certiorari to constitutional cases projected to have preferred outcomes.
Part 3. The Supreme Court claimed supervisory authority over lower federal court procedure, a powerful legal instrument that allows the pursuit of policies beyond constitutional standards. Supervisory power is a neglected subject in political science, and this paper examines its strategic potential and the way it is used by the Court. Analyzing criminal procedure cases 1953-2002, I find that supervisory power is mainly used by liberal justices making pro-defendant decisions, and that liberals are likely to use the more durable constitutional instrument instead of supervisory power when facing an ideologically distant Congress.
0615: Political science