Judicial Policy-Making and Implementation: an Empirical Examination
| Date | 01 September 1988 |
| DOI | 10.1177/106591298804100307 |
| Published date | 01 September 1988 |
| Subject Matter | Articles |
JUDICIAL
POLICY-MAKING
AND
IMPLEMENTATION:
AN
EMPIRICAL
EXAMINATION
TRACIEL
V.
REID
North
Carolina
State
University
OST
studies
of
judicial
policy-making
focus
on
controversial
or
V / restructuring
decisions
such
as
Brown
(Wasby
1970;
Peltason
1974;
Combs
1982),
Roe
(Johnson
and
Canon
1984:
4-14;
Rubin
1982),
Miranda
or
Mapp
(Canon
1973
and
1974;
Romans
1974;
Wilkes
1975).’
These
studies
examine
how
such
wide-ranging
Supreme
Court
rulings
have
been
interpreted
by
lower
court
judges
and
implemented
by
agencies
outside
of
the
court
system.
Although
these
studies
have
greatly
expanded
our
understanding
of
judicial
policy-making
and
im-
plementation,
their
choice of
cases
may
unintentionally
distort
or
exclude
important
judicial
behavior.
Because
the
vast
majority
of
the
Court’s
cases
fail
to
produce
intense
controversy
within
or
outside
of
the
court
sys-
tem,
our
understanding
of
judicial
patterns
would
be
substantially
en-
hanced
by
examining
an
area
of
law
which
has
a
limited
impact
on
the
political
system
or
which
affects
a
small
population.
Studying
judicial
be-
havior
that
occurs
in
a
calm,
nonhostile
climate
may
bring
useful
infor-
mation
to
bear
on
existing
assumptions
about
the
way
courts
operate.
Moreover,
studies
of
judicial
policy-making
and
implementation
are
both
plagued
by
the
inextricability
of
these
two
stages
-
policy-making
affects
implementation,
and
vice
versa.
Implementation
is
a
particularly
amorphous
topic
because
often
the
task
of
implementing
Supreme
Court
rulings
belongs
to
a
widely
divergent
variety
of
third
parties
(Feig
1985:
168).
This
paper
attempts
to
better
isolate judicial
behavior
by
examin-
ing
an
area
where
the
lower
courts
have
the
responsibility
not
only
for
the
interpretation
but
also for
the
implementation
of
judicial
policies.
The
recent
access
cases
represent
an
appropriate
area
of
law
to
test
this
approach.
First
recognized
by
the
United
States
Supreme
Court
in
1980,2
the
First
Amendment
right
of
access
provides
every
member
of
the
public
with
an
enforceable
right
to
demand
admission
to
judicial
proceedings,
even
if
the
trial
judge,
acting
in
the
interests
of
justice,
be-
lieves
that
the
courtroom
should be
closed.
Judicial
recognition
of
the
access
right
has
the
potential
of
ushering
in
a
new
and
important
era
of
constitutional
development
(Lewis
1980:
22-25).
However,
unlike
other
constitutional
freedoms,
the
access
right
has
not
produced
intense
polit-
Received :
January
5,
1987
1st
Revision
Received:
August
20,
1987
Accepted
for
Publication:
August
26,
1987
NOTE:
I
would
like
to
thank
Professor
Elizabethan
O’Sullivan,
Professor
Joel
Rosch
and
this
journal’s
anonymous
reviewers
for
their
helpful
advice
in
writing
this
article.
1
349
U.S.
294
(1954);
410
U.S.
113
(1973);
384
U.S.
436
(1966);
367
U.S.
643
(1961).
2
448
U.S.
555
(1980).
510
ical
controversy
and,
as
a
consequence,
the
development
of
a
judicial
policy
on
access
has
not
been
significantly
disturbed
by
strong,
intense
external
influences.
Furthermore,
the
access
right,
which
resulted
from
a
request
to
keep
a
criminal
trial
open,
essentially
addresses
issues
that
have
traditionally
been
considered
as
within
the
exclusive
province
of
the
courts
(Nelles
and
King
1928:
527,
537;
Radin
1931).
Therefore,
the
access
right
is
appropriate
for
this
study
because
it
was
judicially
created;
its
interpretation
has
been
unaffected
by
intense
community
or
political
pressures;
and
its
implementation
has
been
the
sole
responsibility
of
the
courts.
The
purpose
of
this
article
is
to
examine
federal
and
state
court
re-
sponse
to
the
creation
of
a
First
Amendment
right
of
access
as
a
means
of
studying
lower
court
decision-making
within
the
judicial
policy-making
process.
The
article
will
begin
by
briefly
discussing
different
perspectives
regarding
policy-making
and
policy
implementation
by
the
courts.
The
second
part
will
examine
the
Supreme
Court’s
policy
on
First
Amend-
ment
access.
After
explaining
the
methods
used
to
collect
and
analyze
data,
the
study
will
then
present
and
test
several
hypotheses.
The
article
will
conclude
with
a
summary
and
several
final
observations.
THREE
MODELS
OF
JUDICIAL
POLICY-MAKING
Political
scientists
have
developed
several
models
to
explain
policy-
making
by
the
courts.
Prior
to
the
1950s,
the
hierarchical
model
represented
the
prevailing
view.
The
hierarchical
model
stated
that
the
Supreme
Court,
sitting
at
the
apex
of
the
judicial
pyramid,
developed
poli-
cies
which
were
routinely
and
obediently
implemented
by
the
lower
fed-
eral
and
state
courts
(Peltason
1955:
13).
Although
currently
in
disfavor
among
political
scientists
(Vines
1967;
Haas
1982),
the
hierarchical
model
may
nevertheless
accurately
reflect
how
the
courts
apply
Supreme
Court
decisions
that
produce
little
or
no
external
controversies
within
or
out-
side
of
the
judicial
process.
Perhaps
the
most
noted
studies
affirming
the
validity
of
the
hierar-
chical
model
were
conducted
by
John
Gruhl.
Professor
Gruhl
examined
lower
court
response
to
the
Court’s
refashioning
of
libel
law
in
New
York
Times
v.
Sullivan.3
The
selection
of
libel
as
an
area
of
law
to
study
al-
lowed
Gruhl
to
examine
a
Court
ruling
&dquo;which
does
not
generate
the
heat
[that
the
more
commonly
studied
area
such
as]
school
desegrega-
tion
and
police
practices
do&dquo;
(Gruhl
1980:
504).
Gruhl
analyzed
whether
decisions
rendered
by
federal
circuit
courts,
federal
district
courts,
and
state
supreme
courts
complied
with
Sullivan
and
its
legacy.
On
average,
these
courts
followed
the
Court’s
directive
in
approximately
88
percent
of
their
rulings
(Gruhl
1980:
517;
1982:
124),
thereby
leading
Gruhl
to
conclude
that
the
hierarchical
model
may
describe
a
limited
type
of
judi-
cial
behavior
(Gruhl
1980:
518-19).
3
376
U.S.
254
(1967).
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