Strange Bedfellows

• Author: Teena Wilhelm
• Published date: 01 January 2009
• Date: 01 January 2009
• DOI: http://doi.org/10.1177/1532673X08318590
• Subject Matter: Articles

American Politics Research

Volume 37 Number 1

January 2009 3-29

© 2009 Sage Publications

10.1177/1532673X08318590

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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