Rethinking Supreme Court power in the study of judicial impact

• Published date: 01 October 2021
• Author: Logan Strother
• Date: 01 October 2021
• DOI: http://doi.org/10.1111/lapo.12175

ORIGINAL ARTICLE

Rethinking Supreme Court power in the study of

judicial impact

Logan Strother

Political Science, Purdue University, West

Lafayette, Indiana, USA

Correspondence

Logan Strother, Political Science, Purdue

University, 100 North University St., West

Lafayette, IN 47907-2050, USA.

Email: lstrothe@purdue.edu

Abstract

The extent to which courts meaningfully affect policy

change has been the subject of heated debate among

socio-legal and other public law scholars. I argue here

that one key source of tension in the literature has been

the lack of any clear theory of judicial power, especially

in compliance and other impact studies. Indeed, many

studies have conflated “impact”and power—a move

that serves to confuse rather than clarify the topic. In

this paper, I outline a theory of judicial power for the

study of judicial impact. I then demonstrate the utility

of this theory using two historical case studies. Ulti-

mately, I argue that this theory allows for clearer and

better-grounded inferences about the roles played by

courts in policy and politics.

1|INTRODUCTION

Few topics of debate have generated more heat among scholars of courts than the question of

judicial impact: whether courts meaningfully change policy and the lived practice of politics.

Many scholars contend that the Supreme Court is a fundamentally weak institution with little

power to make public policy. Rosenberg (2008) famously described the Supreme Court as a

“hollow hope”for activists who seek to change policy through litigation, because, on his

account, it lacks any real power to directly alter policy on the ground. A number of scholars

have pushed back against Rosenberg’s thesis, typically by highlighting judicial contributions to

policy development in some area of policy (e.g., Feeley & Rubin, 1998; Frymer, 2003;

Hall, 2011) or by focusing on downstream effects of Court action, such as spurring subsequent

activism (e.g., Andersen, 2006; Arrington, 2019; Keck, 2009; McCann, 1994).

In this article, I argue that one key source of these persistent disagreements about the extent

of judicial influence over policy is the way that scholars have conceptualized and measured

“impact.”In particular, most impact studies conflate judicial impact with judicial power. That

is, scholars working in the compliance study tradition have inadvertently measured power—

albeit in a limited and incomplete way—and then drawn undue inferences about judicial

DOI: 10.1111/lapo.12175

©2021 University of Denver and Wiley Periodicals LLC.

348 Law & Policy. 2021;43:348–367.wileyonlinelibrary.com/journal/lapo

impact. Conversely, socio-legal scholars have eschewed compliance to study a wider range of

impacts but have sometimes made larger claims about power. Power and impact are related

concepts, to be sure, but they are theoretically and analytically distinct. Power implies impact,

but not all impact is necessarily attributable to a direct power relationship. Missing the distinc-

tion has led many scholars working in the impact tradition to underestimate judicial impact

(e.g., by measuring power) and has simultaneously contributed to the tendency of scholars in

different epistemic camps to talk past one another.

Here, I outline a theory of judicial power for the study of judicial impact. Specifically,

I argue that the fundamental nature of the Court’s power is interpretative. The extant compli-

ance literature has focused on policy implementation of judicial orders.

1

This emphasis is prob-

lematic for the study of power for two reasons. First, implementation is always imperfect due to

principal-agent problems and thus elides power per se. Second, the focus on orders unduly nar-

rows the scope of inquiry and misses a key site of direct judicial policymaking. Here, I show

that the Court’s power to interpret the law is an important policy-making power in its own

right, and is cognizable within the compliance study tradition.

In doing so, I advance the literature on judicial impact in two key ways. First, this theory of

power is more complete than existing theories in the compliance vein and is not limited with

respect to the types of cases to which it can be applied, as existing theories are. That is, I show

that the compliance literature has been overly narrow in its focus, even on its own terms. Sec-

ond, I show that a clear conceptualization of judicial power helps us to differentiate power from

impact. This conceptualization allows for clearer and better-grounded inferences about the roles

played by courts in policy and politics. In other words, a theory of judicial power helps us better

understand the ways that power and impact interlock and interact while, at the same time, pro-

viding analytic traction for the study of both. This work clarifies the contributions of traditional

compliance studies and helps situate compliance within the broader literature on judicial

impact.

2|IS THE SUPREME COURT POWERFUL? HOW DO WE KNOW?

Decades of study on the impact of Supreme Court decisions on public policy and political

action have generated a wealth of insights into the Court’s role in our political system. In partic-

ular, we know that many of the Court’s decisions are not implemented by outside actors, and

that the Court’s ability to shape policy directly depends in significant part on the institutional

contexts in which a decision is made (see generally Keck & Strother, 2016). Unfortunately, we

still know rather less than we might about the Court’s power in American politics. A key reason

for this shortcoming is that judicial power is not well theorized in the impact literature, and as

such, studies frequently slip back and forth between the cognate concepts of power and impact.

In many ways, the theories of judicial power that we have today are legacies of the histori-

ography of judicial impact. The activism of the Warren Court that began in the 1950s induced

many students of the Supreme Court to ask whether its landmark decisions early in the “Rights

Revolution,”such as Brown v. Board of Education and Miranda v. Arizona, were having the

real-world effects that liberals hoped for. This question was typically addressed by assessing

the extent to which real-world practices lived up to the dictates of the Court—in other words,

the extent to which outside actors complied with the Court’s orders. Empirical studies of these

questions became known as judicial “impact studies.”

As the study of impact developed, scholars began to use and define impact as being synony-

mous with “compliance.”Compliance studies typically formulate impact as follows: the

Supreme Court ordered X; therefore, we should expect to see X in the real world. Scholars

would then look for X in the real world and report the extent to which real-world political prac-

tice lived up to the dictates of the Court. These studies, then, interrogate the extent to which the

LAW & POLICY349