Testing Judicial Power

Date01 January 2015
Published date01 January 2015
Subject MatterArticles
American Politics Research
2015, Vol. 43(1) 83 –108
© The Author(s) 2014
Reprints and permissions:
DOI: 10.1177/1532673X14534063
Testing Judicial Power:
The Influence of the
U.S. Supreme Court on
Federal Incarceration
Matthew E. K. Hall1
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.
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
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
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

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