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SUPREME COURT POLITICS OF THE USA 1
Robert A. Carp & Ronald Stidham. Judicial Process in America. Washington, DC: Congressional Quarterly Inc, 1998 (4th ed.) Richard Hodder-Williams. The Politics of the US Supreme Court. George Allen & Unwin Ltd: London, 1980 Lee Epstein & Jack Knight. The Choices Justices Make. Washington, DC: Congressional Quarterly Inc., 1998 Forrest Maltzmann, James Spriggs & Paul Wahlbeck. Crafting Law on the Supreme Court: The Collegial Game. Cambridge: Cambridge UP, 2000 Thomas Keck (2007). Party, Policy or Duty: Why Does the Supreme Court Invalidate Federal Statute? The American Political Science Review, 101:2 Anna Harvey & Barry Friedman (2009). Ducking Trouble: Congressionally Induced Selection Bias in the Supreme Court's Agenda. The Journal of Politics, 71:2 Timothy R. Johnson, James F. Spriggs & Paul J. Wahlbeck (2005). Passing and Strategic Voting on the US Supreme Court. Law & Society Review, 39:2 Donald Songer & Stefanie Lindquist (1996). Not the Whole Story: the Impact of Justices' Values on Supreme Court Decision Making. American Journal of Political Science, 40:4 Ryan Owens (2010). The Separation of Powers and Supreme Court Agenda Setting. American Journal of Political Science, 54 Christopher Casillas et al. (2011). How Public Opinion Constrains the US Supreme Court. American Journal of Political Science, 55 Benjamin Lauderdale & Tom Clark (2012). The Supreme Court's Many Median Justices. American Political Science Review, 106 Cliff Carrubba et al. (2012). Who Controls the Content of Supreme Court Opinions?
American Journal of Political Science, 56 Katy Harriger (2011). Judicial Supremacy or Judicial Defence? The Supreme Court and the Separation of Powers. Political Science Quarterly, 126 Mark Graber (1998). Federalist or Friends of Adams: The Marshall Court and Party Politics. Studies in American Political Development, 12 Jack Knight & Lee Epstein (1996). The Norm of Stare Decisis. American Journal of Political Science, 40 Jeffrey Segal & Harold Spaeth (2012). The Influence of Stare Decisis on the Votes of the United States Supreme Court Justices. American Journal of Political Science, 40
2 Robert A. Carp & Ronald Stidham. Judicial Process in America. Washington, DC: Congressional Quarterly Inc, 1998 (4th ed.)
Cue theory. Judges can't read every petition pick up on 'cues' (e.g. government is party, civil rights are at issue, dissension in last court): incl. ideological direction of lower court (e.g. Warren likely to review economic case decided conservatively; obverse true of Burger; Rehnquist picked cases to reaffirm them).
Small-Group Analysis. o Persuasion on merits is possible unless judges have an initially rigid position: justices Thurgood Marshall and Harry Blackman held deep moral opposition to capital punishment, unlikely to be persuaded by legal reasoning or precedents. o Bargaining is subtle because there is deliberation on broader issues. Court spent a year arguing over Roe for a decision acceptable to a majority: Blackmun sent multiple drafts to dissuade dissension - bargaining was quite open, with clerks haggling on justices' behalf!
o Threat of sanctions is used to maximise individual impact: (a) Dissent. Threat is most potent the narrower the majority, or if there is a strong desire for unanimity: pre-Brown majority opposed segregation but waited until there was unanimity. (b) Strong dissent. Defectors can choose whether to dissent with or without opinion; bargaining hand of respected jurists is strong because majority does not want respected dissenting opinion, so may accommodate. (c) Going public. Burger was in initial minority on Roe but broke protocol and asked Blackmun (not Douglas) to write majority opinion, then lobbied for case to be postponed. Douglas threatened to publish full text of dissent on resolution for re-argument.
Richard Hodder-Williams. The Politics of the US Supreme Court. George Allen & Unwin Ltd: London, 1980
The US has two parallel courts for state and federal legislation, but power to adjudicate on Constitution lets SCOTUS rule on the constitutionality of state decisions: e.g. Gideon v. Wainwright determined state courts must provide counsel to poor defendants, after Gideon was denied a lawyer by the Florida Supreme Court.
The Court uses discretion to avoid divisive and disruptive topics: e.g., refused to rule on constitutionality of Vietnam War.
Policy-oriented judges may refrain from voting to grant certiorari because they know in advance that there is a majority against their position, so prefer status quo. 3
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