“Such Inferior Courts . . .”

Published date01 January 2009
Date01 January 2009
Subject MatterArticles
American Politics Research
Volume 37 Number 1
January 2009 75-106
© 2009 Sage Publications
hosted at
“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

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