State Supreme Courts and the Effects of Statutory Constraint

• Published date: 01 December 2011
• Author: Kirk A. Randazzo,Richard W. Waterman,Michael P. Fix
• DOI: 10.1177/1065912910379229
• Date: 01 December 2011

Political Research Quarterly
64(4) 779 –789
State Supreme Courts and the
© 2011 University of Utah
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Effects of Statutory Constraint:
DOI: 10.1177/1065912910379229
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A Test of the Model of Contingent
Discretion
Kirk A. Randazzo1, Richard W. Waterman2, and Michael P. Fix1
Abstract
Do state supreme court judges render decisions according to their ideological preferences, or are they constrained
by the language of state statutes? Using data from the Judge-Level State Supreme Court Database, the authors analyze
the votes of individual judges from 1995 to 1998 to determine whether their behavior is constrained by legislation.
The results indicate that more detailed language (resulting in statutes with higher word counts) significantly limits
the discretion afforded to liberal judges while simultaneously facilitating the ideological voting of their conservative
colleagues.
Keywords
judicial politics, state courts, legislative statutes
In 2008, the California Supreme Court ruled that a ban on
more detailed statutes, their behavior is significantly
same-sex marriage violated the constitutional rights of
constrained. While these studies provide an important
marriage and of equal protection.1 Opponents of this deci-
theoretical development, the generalizability of the con-
sion claimed that the state judges were trying to “stretch
clusions is limited in scope. This is because the federal
California’s Constitution . . . [so it] magically protects
judiciary contains more institutional similarities than dif-
what most societies condemn” (quoted in Dolan 2008),
ferences (for example, all federal judges possess life ten-
thereby usurping the authority of state legislators to “make”
ure). Additionally, the statutes litigated in these courts
the law. This debate prompted other states to craft new
come from the same legislative institution (i.e., Congress).
statutes (similar to the federal Defense of Marriage Act)
Consequently, empirical tests of the Model of Contingent
or pass amendments to state constitutions that defined
Discretion have been conducted in the absence of contex-
marriage in specific ways. These actions, however, beg
tual and institutional variation.
the question whether new legislation will “keep judges in
We expand upon the previous research by testing
check.” If judges “make up” the law according to their
the Model of Contingent Discretion at the state supreme
ideological preferences, then the development of additional
court level. Recognizing that courts as institutions are
legislation will not substantially alter judicial behavior.
not merely a “collection of individuals . . . pursuing their
Yet if judges adhere to the language of statutes, then state
individual policy preferences” (Gillman and Clayton
legislatures possess an ability to significantly constrain
1999, 1), a more searching examination of the impact
judicial decision making.
of legislative statutes must focus on judicial decision
Previous research on the constraining effect of statutory
making under a variety of institutional contexts. As previ-
language demonstrates that it influences federal appellate
ous research demonstrates (see Brace and Hall 1995),
judges (Randazzo, Waterman, and Fine 2006) as well as
state courts provide the ideal “natural experiment” for
justices of the U.S. Supreme Court (Randazzo and Waterman
2006). Both analyses provide evidence that the decision
1University of South Carolina, Columbia, SC, USA
calculus of federal judges is contingent upon the language
2University of Kentucky, Lexington, KY, USA
of congressional statutes—judges are able to render deci-
Corresponding Author:
sions according to their ideological preferences when fed-
Kirk A. Randazzo, 329 Gambrell Hall, Columbia, SC 29208, USA
eral statutes provide discretion; but when they encounter
Email: randazzo@mailbox.sc.edu

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Political Research Quarterly 64(4)
examining judicial behavior under a range of institutional
While this stream of research has done a great deal to
variation. This allows researchers to fine-tune theoreti-
move towards an explanation of judicial decision making
cal predictions through several contextual environ-
that incorporates multiple influences into a single model,
ments, thus reducing the likelihood of spurious
it has come up short with respect to legal influences on
findings due to institutional homogeneity. The central
state supreme court judges. One primary reason involves
question of this analysis therefore examines whether state
the type of measurements employed—usually a series
supreme court judges render decisions according to their
of dummy variables to control for various legal aspects
ideological preferences (similar to federal judges) in lieu
(such as case facts or precedent). Unfortunately, reliance
of the potentially constraining language of state stat-
on dummy variables only provides information about
utes and other institutional influences (such as method of
whether differences exist between the absence and pres-
selection).
ence of phenomena. To obtain a richer understanding
about the degree of influence that the law may exert on
Influence of Law and Ideology
judicial behavior, a more robust measure is necessary.
on State Supreme Courts
The Model of Contingent Discretion
In contrast to “the preoccupation . . . with attitudes and
policy preferences of individual justices” (Gillman and
While there is a renewed focus on institutional approaches
Clayton 1999, 1) that dominates much of the research on
to decision making for the U.S. Supreme Court (see, e.g.,
the U.S. Supreme Court, state court scholars combine a
Clayton and Gillman 1999), the dominant theoretical
“constellation of contextual, institutional, and attitudinal
approach continues to reside with the attitudinal model.
factors” into a single approach (Langer 2002, 26). Known
This argument by Segal and Spaeth (1993, 2002) provides
as neoinstitutionalism, this approach creates integrated
evidence that judges (in particular Supreme Court jus-
models that incorporate these various factors (Brace and
tices) render decisions according to their individual ideo-
Hall 1990, 1997; Hall and Brace 1989).
logical preferences, ceteris paribus. Yet even in the
In part, this line of research focuses on the institutional
context of the U.S. Supreme Court, we are less certain
differences between state and federal courts. As with fed-
about the impact of these ideological influences when
eral judges, it is generally assumed that judges on state
other factors are not equal. Various legal considerations
supreme courts are interested in furthering their personal
such as precedent, case facts, the plain meaning of the law,
policy preferences (Brace and Hall 1997; Langer 2002).
and legislative intent may affect the ability of judges to
Yet lacking insulation from potential retaliation by other
rule ideologically. Stated another way, the impact of ideol-
institutions (and in some cases by voters), these judges
ogy on judicial behavior may be contingent on the degree
must consider possible sanctions when making decisions
of legal discretion afforded to judges.
(Brace and Hall 1990, 1997; Langer 2002). For example,
At the state court level, there are few—if any—scholars
Douglas and Hartley (2003) demonstrate that, in some
who assert that a pure attitudinal model operates in this
states, courts must be concerned with potential sanctions
context. Moreover, there is a myriad of extant evidence
from other institutions in the form of attacks on their bud-
that both law and ideology exert a significant influence on
gets and other financial resources.
judicial decision making (Brace and Hall 1995, 1997).
Certain institutional factors have long been recog-
Yet our understanding of how these potentially opposing
nized as influencing the decision making of state court
influences operate is less clear. Are they truly independent,
judges. In states with elected judges, scholars recognize
or is there a more dynamic interdependence between law
that electoral considerations affect judicial behavior
and ideology? If the former, then we should observe an
(Jaros and Canon 1971 ). In these states, supreme court
opposing tension between these forces—as the effects of
judges face additional constraints on voting—for exam-
the law increase, the influence of ideology should decrease
ple, Hall (1992) demonstrates how judges facing reelec-
(and vice versa). Conversely, if a more dynamic interde-
tion vote strategically in death penalty cases to minimize
pendence exists, then we should observe a more complex
their chances of electoral defeat. Moreover, other research
interaction in which some situations present the opposing
concludes that state court judges encounter a variety of
tension between law and ideology, while others provide
significant influences beyond ideology and electoral
for a convergence of these influences.2
pressures, such as the length of service (Brace and Hall
Our Model of Contingent Discretion argues that the
1997), specific case facts (Brace and Hall 1990), the
laws passed by legislatures may condition the degree to
complexity of a state’s political environment (Brace and
which judges can rely on their individual ideological pref-
Hall 1990), state ideology (Brace and Hall 1997), and the
...