“Such Inferior Courts . . .”

• Published date: 01 January 2009
• Date: 01 January 2009
• DOI: http://doi.org/10.1177/1532673X08320233
• Subject Matter: Articles

American Politics Research

Volume 37 Number 1

January 2009 75-106

© 2009 Sage Publications

10.1177/1532673X08320233

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75

“Such Inferior Courts . . .”

Compliance by Circuits with

Jurisprudential Regimes

Jennifer K. Luse

Stephen F. Austin State University, Texas

Geoffrey McGovern

Wendy L. Martinek

Binghamton University, New York

Sara C. Benesh

University of Wisconsin–Milwaukee,Wisconsin

Through its rulings, the U.S. Supreme Court makes clear what the

Constitution means and how best to interpret congressional statutes. But,

because Supreme Court rulings do not implement themselves, the Court is

dependent on compliance by lower courts to effectuate its policies. Using the

concept of jurisprudential regimes developed by Richards and Kritzer in

2002 and specifically the Establishment Clause jurisprudential regime they

identified in 2003, we evaluate the extent to which the U.S. Courts of Appeals

faithfully implement the Supreme Court’s policy in this area of law. We find

that decision making by court of appeals panels is indeed structured by the

Supreme Court’s Establishment Clause jurisprudential regime, even when

taking into account the policy preferences of court of appeals judges.

Furthermore we find that this attentiveness to legal factors is not a function

of circuit court judges’ fear of reversal.

Keywords: U.S. Courts of Appeals; judicial compliance; judicial decision

making; jurisprudential regimes; Establishment Clause

Through its rulings, the U.S. Supreme Court makes clear what the

Constitution means and how best to interpret congressional statutes.

However, despite its enunciation of what the Constitution requires or the

meaning of federal statutes, Supreme Court policies do not automatically

implement themselves; rather the Court relies on compliance by, inter alia,

the lower federal courts in effectuating its policies. Scholars never tire of

exploring judicial compliance because the matter is fraught with meaning

for understanding the Court’s role in American politics and society. If a

76 American Politics Research

definitive meaning for constitutional dictates or statutory meaning were to

be completely absent, the democracy would, in many ways, be crippled. An

ineffectual Court—one that handed down rulings only to be ignored by

inferior tribunals—would be singularly enfeebled in the administration of

justice. Furthermore, if there were no meaningful authority attached to the

Court’s rulings, the Court would sit at a hollow apex and perform little

more than a ceremonial role. As a consequence, studies of federal law (as

well as Congress, the president, and the states) would wisely ignore its

decisions. It behooves us, then, to ascertain the extent to which the Court is

efficacious in terms of its written policy.

In this article, we advance an innovative test of the degree to which the

Supreme Court influences decision making by one of its relevant audiences

(Baum, 2006), the U.S. Courts of Appeals, that expressly considers the role

played by law in judicial decision making. Using the Supreme Court’s

Establishment Clause jurisprudence, we seek to determine whether the

jurisprudential regime adopted by the Court, as denoted by the decision in

Lemon v. Kurtzman,1structures decision making in the circuit courts,

thereby adapting Kritzer and Richards’s concept of jurisprudential regimes

for use in measuring and explaining compliance (Kritzer & Richards, 2003,

2005; Richards & Kritzer, 2002; Richards, Smith, & Kritzer, 2006). A

jurisprudential regime is a device that

structure[s] Supreme Court decision making by establishing which case fac-

tors are relevant for decision making and/or by setting the level of scrutiny or

balancing the justices are to employ in assessing case factors (i.e., weighting

the influences of various factors). Justices then apply regimes in subsequent

pertinent cases. (Richards & Kritzer, 2002, p. 305)

Here, we provide evidence that the compliance of the circuit courts with

the Supreme Court is a function of the circuits’ conscious attempt to make

Authors’Note: A much earlier version of this research was presented at the 2006 annual meet-

ing of the Midwest Political Science Association and a later version was presented at the 2007

Conference on Empirical Legal Studies. We appreciate the thoughtful feedback and helpful

suggestions provided by the panelists and audience members at those meetings, especially

Charles Cameron, Bradley C. Canon, Pamela C. Corley, and Donald R. Songer. We are also

grateful to Nancy Scherer and Harold J. Spaeth for their comments and insights on this and

related projects. Please address correspondence to Wendy L. Martinek, Department of

Political Science, Binghamton University, P.O. Box 6000, Binghamton, NY 13902–6000;

e-mail: martinek@binghamton.edu.

the most “legally sound” decision. Where a jurisprudential regime exists,

reliance on it by lower courts constitutes good evidence that they are trying

to produce “legally sound” rulings. That is, that they are complying with the

Supreme Court’s jurisprudence in the given area of law.

Why Comply?

As a concept, compliance lends itself to myriad meanings. In its most

extreme incarnation, compliance with a superior court by an inferior court

requires strict adherence on the part of the latter with the legal dictates of the

former, with any deviation considered noncompliance. Such a rigid definition

of compliance, however, exsanguinates the concept of any practical value

given the indeterminacy of precedent, which can make it difficult for even the

most faithful and attentive lower court to determine what is required based on

existing precedent. At the other extreme is compliance as a concept that

merely requires that a lower court avoid overt defiance—that is, explicitly

asserting that it is not abiding by the superior court’s rulings—perhaps by

characterizing a seemingly relevant precedent as inapplicable due to some

distinguishing factor, no matter how small. This loose definition is equally

lacking in utility because it makes virtually every lower court decision a com-

pliant one. More useful is to think of compliance as a matter of congruence

between the decision making of superior courts and that of inferior courts: “In

the judicial hierarchy, ‘congruence’ implies that an appeals court and the

Supreme Court decide a case the same way, given the facts in the case”

(Songer, Segal, & Cameron, 1994, p. 675).2 If the same factors that matter in

the Supreme Court’s decision-making process matter in the lower court’s

decision-making process, the lower court can be considered compliant.

This way of thinking about compliance is particularly attractive in the

context of compliance on the part of the U.S. Courts of Appeals with the

U.S. Supreme Court. The courts of appeals are deliberately regional in

nature, as evidenced by their geographic organization. This is no mere arti-

fact of history but reflects the tension between advocates of increased

national power and those who favored the devolution of authority to the

state and local level (Richardson & Vines, 1970, p. 27). Although these

courts may seek to contribute to uniformity in federal law, “The task to

which the courts of appeals have called themselves is that of making the

national law as applied to their geographical territories”(emphasis added;

Carrington, 1999, p. 517). That is, they attempt to balance uniformity with

necessary regional adaptation, which is reflected (albeit imperfectly) in the

Luse et al. / Compliance by Circuits With Jurisprudential Regimes 77