Judicial choice and the politics of abortion: institutions, context, and the autonomy of courts.

• Author: Brace, Paul

The power of courts to thwart the will of the popularly elected branches of government and to stand in direct contradistinction to the dominant political alliance has fascinated scholars of American politics since the nation's inception. Although courts have been idealized as barriers to majority tyranny because of their seeming willingness to confront legislative majorities through the power of judicial review, serious questions have been raised about the actual nature of courts' countermajoritarian function and, in particular, the conditions under which courts are willing to challenge legislative majorities.

When are courts likely to take on legislatures in the game of separation of powers/checks and balances? Or, stated more broadly, to what extent are courts autonomous institutions whose functions are impervious to conditions in the external political environment? After all, the countermajoritarian function and the autonomy of courts are hampered if courts, or the individual judges casting votes in the cases, fear legislative sanctions and defer to legislative preferences to avoid them.

This Article seeks to explore fundamental questions about the nature of inter-institutional conflict by examining all cases decided since Roe v. Wade(1) by state supreme courts in which direct challenges to state statutes regulating abortion services were raised. As institutions with a diversity guaranteed by jurisdiction, state supreme courts are subject to virtually every force likely to affect judicial choice.(2) Consequently, they offer an ideal laboratory for testing relevant contextual hypotheses. Similarly, the abortion issue provides a manageable, yet highly charged, specimen with which we can conduct our analysis.(3)

In response to concerns about the basis of inter-institutional conflict with the courts, two different conceptualizations of courts as institutions have emerged in the scholarly literature based on studies of the United States Supreme Court.(4) First, scholars working within the framework of attitudinal theory have posited that the Supreme Court is a highly autonomous institution whose decisions essentially reflect the aggregation of preferences of its members.(5) Because various institutional arrangements (e.g., lifetime tenure) insulate the Court from sanctions, the Supreme Court lacks incentives to respond to forces in the external environment, including Congress, except on the rarest of occasions.(6) Given the highly insular nature of the Court, individual justices are free to cast votes in accordance with their preferences on issues of public policy.(7) Therefore, the Supreme Court only overturns statutes under conditions where the preferences of the Court majority and Congress merely conflict, without reference to exogenous factors.(8)

Alternatively, scholars working within the rational choice framework have offered another conceptualization of the relationship between the Supreme Court and Congress that poses a serious challenge to the widely accepted principle of judicial autonomy and purely attitudinal voting.(9) Positive theorists have argued that even when preferences conflict, the Supreme Court frequently will acquiesce to the legislative majority when the Court anticipates some possible reprisal or sanction for its actions.(10) One particularly important reprisal is subsequent statutory revision. Stated differently, positive theorists model the preferences of Congress as a significant constraint on judicial choice in the nation's highest court, and the power of Congress as a limit on the autonomy of the Supreme Court.(11)

While these two alternative perspectives on the status of the United States Supreme Court will continue to be debated as new evidence is brought to bear on the issue, some very recent research raises serious doubts about the utility of models derived from positive theory for explaining the Supreme Court's interaction with Congress.(12) In a highly thought-provoking paper, Jeffrey Segal presents a convincing case that assumptions about the insularity of courts are theoretically sound and empirically correct for the Supreme Court, even in matters of statutory interpretation.(13) As Segal demonstrates, very much in accordance with the voluminous literature on attitudinal theory, individual justices cast votes on the basis of their personal preferences, displaying little evidence of deference to Congress.(14) In other words, the Supreme Court's decisions are not constrained by anticipated reactions from Congress. As mentioned, Segal attributes the failure to find empirical support for separation-of-powers models to the institutional arrangements that define the Court and free its members from the need to engage in strategic voting.(15)

The matter of the United States Supreme Court's insularity from Congress appears to be resolved, at least for the moment.(16) However, arguments about the effects of institutional arrangements on judicial choice actually are untested, though highly plausible, hypotheses.(17) Moreover, studies of the United States Supreme Court leave unaddressed the issue of how alternative rules and structures generally might affect the autonomy of courts. While Segal argues and demonstrates convincingly that there are no incentives for United States Supreme Court justices to act strategically vis-a-vis external political conditions, this begs the question of whether judges will act strategically if operating within a less insular environment.(18) Are positive theorists dead wrong? Or are they simply wrong about the types of courts to which their arguments best apply?

In order to test hypotheses about the effects of alternative institutional arrangements on judicial choice and to transcend theories that are institution-specific, comparative analysis is essential. In fact, it is most reasonable to observe that if scholars had first studied courts comparatively instead of relying so heavily on the case study approach seemingly endemic to judicial politics scholarship, the preceding debate between the attitudinalists and positive theorists probably would have been unnecessary. By studying single institutions, general theories of politics continue to be elusive, and assertions about the effects of institutional arrangements remain hypotheses rather than validated propositions.

Furthermore, studies of judicial-legislative interaction typically have focused only on one aspect of what really is a two-stage process.(19) Before a court, or the individual justices composing the court, can resolve a case, the case first must be appealed.(20) It is highly plausible to assume that external forces, including the relative position of the legislative majority, serve to shape courts' agendas by influencing whether cases are ever brought before courts for resolution in the first place.(21) In fact, external political conditions may have a great deal of influence over whether a case ever appears on a court's docket, but may or may not continue to influence the actual manner in which the case finally is decided, given the filtering process that precedes voting on the merits.(22) Focusing only on voting in plenary cases when evaluating judicial autonomy may miss the influence of external political conditions on the agenda-setting function of courts, as well as the justices' subsequent opportunities to overturn legislative majorities, and may seriously underestimate the overall impact of contextual forces on judicial choice.(23)

In this Article, we utilize comparative state analysis to address several fundamental questions about the essential functions of courts and the manner in which these functions are penetrated by the political environment.(24) What we have strong theoretical reasons to expect, and find empirical evidence for, is that both the attitudinalists and rational choice theorists are, to some extent correct, depending on the institutional context.(25) Separation-of-powers models, as articulated by rational choice theorists, are highly effective in institutional settings where courts are tied more closely to their external environments by various institutional arrangements and where individual justices face strong incentives to engage in strategic voting.(26) Consistent with positive theory, the likelihood of a case that presents an opportunity for judicial review ever appearing on a court's docket is, in part, a function of the political climate and a variety of institutional features that create linkages between courts and their environments.(27) Moreover, once cases are on the docket, external forces, including the other branches of government, shape the willingness of courts to subjugate the will of the legislature by invalidating statutes.(28) In essence, the autonomy of courts is shaped by the rules and structures defining the institution, and the countermajoritarian function is, under certain conditions, highly constrained. We describe our research design,(29) empirical findings,(30) and the literature relevant(31) to our analysis in the pages below.

ON THE AUTONOMY OF COURTS

Through the extraordinary analytical advantages offered by comparative state analysis, we have the ability to ascertain the extent to which courts' responses to their external environments and the dominant political alliance are shaped by alternative institutional arrangements. Do courts, composed of individuals with their own inherent and operational goals,(32) diverge from the policies and agenda of the dominant political alliance? Or are courts constrained by the incentives and sanctions afforded them by their institution and their external environment?

We begin with a simple assumption, consistent with the principles of attitudinal and positive theory: that judges are rational, utility maximizing individuals who wish to see their personal preferences translated into public policy. We further assume that judges are constrained in pursuing their own agendas by external...