Testing Judicial Power

• Author: Matthew E. K. Hall
• Date: 01 January 2015
• Published date: 01 January 2015
• DOI: 10.1177/1532673X14534063
• Subject Matter: Articles

American Politics Research

2015, Vol. 43(1) 83 –108

© The Author(s) 2014

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DOI: 10.1177/1532673X14534063

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Article

Testing Judicial Power:

The Influence of the

U.S. Supreme Court on

Federal Incarceration

Matthew E. K. Hall1

Abstract

The U.S. Supreme Court is traditionally thought to hold little influence over

social or political change; however, recent evidence suggests the Court

may wield significant power, especially with regard to criminal justice.

Most studies evaluate judicial power by examining the effects of individual

rulings on the implementation of specific policies, but this approach may

overlook the broader impact of courts on society. Instead, I adopt an

aggregate approach to test U.S. Supreme Court power. I find that aggregate

conservative decision making by the Court is positively associated with

long-term shifts in new admissions to U.S. federal prisons. These results

suggest the Court possesses significant power to influence important social

outcomes, at least in the context of the criminal justice system.

Keywords

judicial power, policy impact, U.S. supreme court, incarceration, law and

social change

To what extent can the U.S. Supreme Court influence social and political

outcomes? Traditionally, the Court is said to wield little power: “The

1University of Notre Dame, IN, USA

Corresponding Author:

Matthew E. K. Hall, Assistant Professor, Department of Political Science, University of Notre

Dame, 217 O’Shaughnessy Hall, South Bend, IN 46617, USA.

Email: matt.hall@nd.edu

534063APRXXX10.1177/1532673X14534063American Politics ResearchAmerican Politics ResearchHall

research-article2014

84 American Politics Research 43(1)

judiciary,” as Alexander Hamilton observed, “has no influence over either the

sword or the purse . . . and must ultimately depend upon the aid of the execu-

tive arm even for the efficacy of its judgments” (Federalist 78). Most empiri-

cal research confirms Hamilton’s expectations, finding that “the Court is

quite constrained in its ability to secure social change” (Baum, 2003, p. 177).

The Court is said to be ineffectual even in the domain it most directly super-

vises: the criminal justice system (Horowitz, 1977; Rosenberg, 2008; Wasby,

1976). However, some recent studies challenge this traditional view and sug-

gest the Court possesses substantial influence (Howard & Steigerwalt, 2012;

Keck, 2009), particularly with regard to criminal justice policy (Hall, 2011).

Hence, considerable disagreement exists over the extent of Supreme Court

power.

This debate has important implications for judicial politics, constitutional

law, and democratic theory. The Court’s supposed lack of implementation

power may compel the justices to strategically alter their decisions based on

the preferences of the president (Owens, 2010), Congress (Segal, Westerland,

& Lindquist, 2011), or the public (Casillas, Enns, & Wohlfarth, 2011).

Moreover, if the justices are unable to influence social outcomes, it is unclear

how they might protect the interests of minorities or promote principles of

liberty and justice (Dahl, 1957). Alternatively, if the Court can significantly

affect social change, it may raise democratic concerns, especially if it is act-

ing as a countermajoritarian institution (Bickel, 1986).

In an effort to assess Supreme Court power, previous research has evalu-

ated the effects of individual rulings on the implementation of specific poli-

cies in before-and-after studies (e.g., Hall, 2011; Rosenberg, 2008). These

micro-level studies have undoubtedly yielded valuable insights into the

effects of particular rulings, but they may overlook the Court’s broader social

and political impact. A macro-level analysis of the Court’s influence may

provide a more complete understanding of judicial power. Thus, I adopt a

macro approach, in which the Court’s power is ascertained by testing the

effect of its aggregate decision making on a broad policy output over time.

Specifically, I test the Court’s aggregate influence on new admissions to fed-

eral prison.

The results of my analysis support my theoretical expectations. I find that

conservative Supreme Court decision making is positively associated with

long-term shifts in new admissions to federal prison. My analysis offers sev-

eral important contributions to the study of American politics and policy

impact. First, my findings highlight the importance of examining the aggre-

gate effects of policymaking over time in addition to the direct implementa-

tion of specific policy enactments. Second, contrary to some accounts, the

U.S. Supreme Court appears to exert considerable independent influence