A Neo-Institutional Explanation of State Supreme Court Responses in Search and Seizure Cases

• Author: Scott A. Comparato,Scott D. McClurg
• DOI: 10.1177/1532673X07302595
• Published date: 01 September 2007
• Date: 01 September 2007
• Subject Matter: Articles

American Politics Research

Volume 35 Number 5

September 2007 726-754

© 2007 Sage Publications

10.1177/1532673X07302595

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726

Author’s Note: Earlier versions of this article were presented at the 2002 annual meeting of

the Midwest Political Science Association and the 2002 annual meeting of the Southern

Political Science Association. We would like to thank Laura Langer for sharing her data and

Jody Pennington for her diligent research assistance. We are also grateful to William McLean,

Donald Songer, Jim Spriggs, Paul Wahlbeck, and Stephen Wasby for their comments. All

errors remain our own.

A Neo-Institutional

Explanation of State

Supreme Court Responses

in Search and Seizure Cases

Scott A. Comparato

Scott D. McClurg

Southern Illinois University-Carbondale

To better understand the relationship between the U.S. Supreme Court and

state supreme courts, we examine how Supreme Court precedent affects state

supreme court decision making. Examining state supreme court decisions in

search and seizure cases decided by the Supreme Court between 1983 and

1993, we specifically test hypotheses about how state judicial context and

Supreme Court behavior influences when the lower court is likely to be

affected by Supreme Court precedent. We find that there is substantial

variation in the responses to precedent by state supreme courts. We find that

precedent has a substantial influence on the behavior of state supreme court

justices, but judicial ideology and the level of historical conflict between the

Supreme Court and the state supreme court also influence the dissemination

of precedent to the states. Most interesting, the effect of judicial retention

methods on the application of precedent are considerable.

Keywords: search and seizure; state supreme courts; compliance; state

judicial institutions; judicial behavior

Introduction

There exists a diverse body of research on how lower courts are affected

by Supreme Court precedent (Beiser, 1968; Benesh & Reddick, 2001;

Emmert & Traut, 1994; Gruhl, 1980; Hoekstra, 2005; Johnson, 1979; Klein

Comparato, McClurg / Neo-Institutional Explanation of State Supreme Court Responses 727

& Hume, 2003; Romans, 1974). To the extent that state supreme courts

have been the subject of such research, the findings suggest that they are

attentive to precedent but vary notably in their application of the Court’s

decisions. At times, Supreme Court precedent appears to have a tangible

influence on the outcomes of the decisions of state supreme court justices,

whereas in other contexts the ideology of the justices or state-level political

factors serve to mitigate the power of precedent.

The relationship between the Supreme Court and lower courts is, there-

fore, more complicated than it may appear at first glance. To better under-

stand this relationship, we examine the impact of Supreme Court precedent

on state supreme court decision making. Examining search and seizure

cases, we assess how state judicial context and Supreme Court precedent

influences decision making on state supreme courts. Our findings suggest

that the judicial retention system and the degree of Supreme Court moni-

toring of the state supreme court are of primary importance in understand-

ing the responses of state supreme court justices to Supreme Court

precedent. Specifically, justices in merit retention states are more attentive

to precedent of the Supreme Court than justices in either elite or competi-

tive election systems. Moreover, we find that the degree to which the

Supreme Court monitors state supreme courts influences the responsive-

ness of those courts to precedent, though in some unexpected ways.

The Impact of Supreme Court

Decisions on Lower Courts

Judicial decision makers are influenced by a complex array of factors,

including their own preferences (Brace, Langer, & Hall, 2000; Segal &

Spaeth, 2002) and the political environment (Epstein & Knight, 2000;

Maltzman, Spriggs, & Wahlbeck, 2000). But the decisions of other courts,

especially higher courts, are also important. This is partly because prece-

dent is a guide to decision making in the presence of specific fact patterns

(Emmert, 1992; Emmert & Traut, 1994; George & Epstein, 1992; Segal,

1984, 1986; Segal & Spaeth, 2002). It is also because precedent is a nor-

mative guide for lower courts, especially in cases with novel fact patterns

(Hansford & Spriggs, 2006; Knight & Epstein, 1996; Landes & Posner,

1976; Wahlbeck, 1997).

Nevertheless, there is considerable debate on the ability of higher courts

to get lower courts to adhere to their decisions. Much of the work on the

role of precedent focuses on the hierarchical nature of the federal court