Strange Bedfellows

Published date01 January 2009
Date01 January 2009
Subject MatterArticles
American Politics Research
Volume 37 Number 1
January 2009 3-29
© 2009 Sage Publications
hosted at
Strange Bedfellows
The Policy Consequences of
Legislative–Judicial Relations
in the American States
Teena Wilhelm
University of Georgia, Athens
This research examines the relationship between courts and legislatures in a
comparative perspective. Specifically, I examine how (a) the ideological
composition of the bench, (b) the propensity of court involvement in a given
policy area, and (c) the disposition of court decisions in a given policy area
influence the ideology of bill introductions and policy enactments by state
legislatures. By examining HMO regulation and education policy in the
American states during the 1990s, I find evidence that judicial influence does
affect legislative policymaking,in both the introduction and enactment stag es,
across both policy areas. Although traditional scholarship has depicted the
judicial branch as having minimal effect on policy formation, and subse-
quently social change, the findings of this study suggest that we have over-
looked an important policymaking role of the judicial branch. Furthermore,
state policy research has not given adequate attention to judicial influence as
an explanation for policy formation in the American states.
Keywords: state courts; political ideology; state legislatures; health care
regulation; education policy; judicial policymaking
Political science is by no means short of commentary on the effect of
courts on public policy (e.g., Rosenberg, 1991). The bulk of this litera-
ture considers the role of courts after policy is passed and comes before the
courts for review. This literature places courts at the “back end” of policy-
making, and influence is measured after legislatures have created and passed
laws. The question considered here, however, is an alternative timing (and
means) of judicial influence. This revised notion of judicial influence places
courts at the “front end” or agenda-setting stage of policymaking. It fits into
a separation-of-powers view of the policy process whereby courts become
almost active participants as policy is made. The notion follows from the
idea that policymakers in the agenda-setting stage consider the institutional
4 American Politics Research
constraints that could affect their preferred policy outcome. Based on these
constraints, they structure their policy decisions so as to maximize political
advantage for the future. Courts serve as reference points for legislatures
that wish to calculate what may happen to the policies they create. This has
been labeled as a “preemptive” power of courts and can explain how judicia-
ries have a role not only as intervening and responsive but also as determi-
nants in policy formation (Langer & Brace, 2005).
Little is known about the interaction between state supreme courts and
state legislatures across bill introductions and enactments. As a consequence,
little attention has been given to the multidimensional role that state supreme
courts have in the policymaking process. As recent media reports suggest,
direct evidence of interbranch politics seems to exist. Specifically, at least
three states had media coverage surrounding allegations of unethical private
conversations or other communications between state supreme court justices
and state legislators (in 2006-2007). In Pennsylvania, a federal lawsuit was
filed to determine whether certain legislators advocated increased judicial
funding as a tradeoff for case outcomes before the state supreme court, as
arranged during private communications between legislators and justices.1In
Kansas, the Kansas Commission on Judicial Qualifications formally investi-
gated a state supreme court justice accused of discussing public school fund-
ing with two legislators while a case on the subject was before the court.2And
in Minnesota, in a sweeping move, the Minnesota Board on Judicial Standards
opened investigations on all seven members of the Minnesota Supreme Court.
The unprecedented step came after allegations were made that improper con-
versations took place between a state legislator and members of the court
concerning same-sex marriage.3A commonality among these reports is the
idea that members of state legislatures are evidently aware that state supreme
courts will be the final say on many areas of public policy. Furthermore,state
legislators understand the implications of a political system of separation of
powers and the tit-for-tat game implied by its design.
This research explores the evidence not discussed in state-level media:
the indirect evidence of interaction between state supreme courts and state
legislatures. It will assess whether state supreme courts exert a preemptive
influence when legislators introduce and enact state policy. To do so, I look
at the ideological changes in education and HMO regulatory policies in the
states during the 1990s. Examination of both the introduction and enactment
stages permits systematic evaluation of whether or not, and to what extent,
legislative behavior vis-à-vis courts differs in these two stages. Moreover,
studying these two stages of the policy process can advance a more complete
understanding of the role courts play in policymaking. Specifically, I examine

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