The Influence of Precedent on State Supreme Courts

• Author: Donald R. Songer,Michael P. Fix,Benjamin Kassow
• Published date: 01 June 2012
• Date: 01 June 2012
• DOI: http://doi.org/10.1177/1065912910391477
• Subject Matter: Articles

Political Research Quarterly
65(2) 372 –384
The Influence of Precedent on
© 2012 University of Utah
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State Supreme Courts
DOI: 10.1177/1065912910391477
http://prq.sagepub.com
Benjamin Kassow1, Donald R. Songer1, and Michael P. Fix1
Abstract
Studies of policy making by courts need to examine the actual policy adopted in the majority opinion rather than
studying votes. The authors examine the responsiveness of state supreme courts to precedents announced by the
US Supreme Court by examining their treatment of the precedents in their opinions, testing the utility of precedent
vitality versus the impact of ideological preferences. They find that the vitality of Supreme Court precedent is a strong
predictor of the way in which the precedent is treated by state courts, even after controlling for ideological distance
and institutional features of state court systems.
Keywords
state courts, precedent treatment, implementation, lower court responsiveness
If adherence to a precedent actually impedes the stable
“conservative” outcomes have some general relevance
and orderly adjudication of future cases, its stare decisis
for the understanding of the policies produced by courts,
effect is also diminished. This can happen in a number of
an analysis with such a limited focus sheds little light on
circumstances, such as when the precedent’s validity is
actual policy making. Appellate courts make policy with
so hotly contested that it cannot reliably function as a
the content of their opinions that provide interpretations
basis for decision in future cases, when its rationale
and rules (precedents) designed to guide and constrain
threatens to upend our settled jurisprudence in related
the future actions of judges and other public officials.
areas of law, and when the precedent’s underlying rea-
Characterizing those opinions as merely liberal or conser-
soning has become so discredited that the Court cannot
vative inevitably misses much of the significance of the
keep the precedent alive without jury-rigging new and
rules adopted and in some instances actually distorts the
different justifications to shore up the original mistake.
substance of the precedent adopted.
Concurring opinion by C. J. Roberts in Citizens
The major exception to this tendency of empirical
United v. Federal Election Commission (2010)
research on the courts to ignore the actual policy content
of decisions is a series of studies that investigate the
implementation or “impact” of the policy decisions (i.e.,
The conventional wisdom repeated in virtually all recent
precedents) announced by the US Supreme Court. These
scholarship on appellate courts is that “judges make policy”
studies start with the premise that lower courts have a
(Segal and Spaeth 2002, 6). Yet while the policy-making
clear, legally enforceable obligation to faithfully follow
role of courts is routinely cited as an important rationale
and implement the precedents established by courts
for the social science study of courts, it remains true to
above them in the legal hierarchy. Most of these impact
this day that “the most theoretically rich and empirically
studies have involved qualitative assessments of whether
robust studies by judicial scholars generally focus on
the decisions of lower courts, including state supreme
explaining case outcomes (e.g., who wins or loses) or the
courts, are in compliance with the rule announced by spe-
behavior of individual justices” (Maltzman, Spriggs, and
cific prior decisions of the US Supreme Court (Songer
Wahlbeck 2000, 6). Most empirical studies give little
1988). While these studies do have the virtue of a focus
attention to either the substance of policy or the process
by which policy is made. In fact, one recent assessment
1
notes that the “paucity of systematic theoretical or empir-
University of South Carolina, Columbia, SC, USA
ical studies that treat law as a variable to be explained” is
Corresponding Author:
striking (Hansford and Spriggs 2006, 3). While the myr-
Benjamin Kassow, University of South Carolina, Department
iad studies that examine whether the decisions of courts
of Political Science, 817 Henderson Street, Columbia, SC 29208
or the votes of the judges support “liberal” rather than
Email: bkassow@gmail.com

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Kassow et al.
373
on the policies adopted by the lower courts, they provide
Determining whether a particular decision was noncom-
limited insight into the nature of the policy making involved
pliant required the use of traditional legal analysis. The
in implementation.
literature on judicial impact revealed a number of spe-
The study of implementation of US Supreme Court
cific instances of lower court noncompliance, including
decisions is an important field for study within judicial
some overt defiance of the US Supreme Court by state
politics and political science more broadly. Understanding
court judges (Peltason 1961; Manwaring 1968; Gruhl
how other political actors and lower courts interpret and
1980; Tarr 1977; Songer 1983; Canon 1973;1974; Canon
implement judicial precedent shows to what degree other
and Kolson 1971; Johnson and Canon 1984; Wasby
political actors view the US Supreme Court as legitimate.
1970; Beatty 1972). However, the broader finding emerg-
If other political actors frequently shirk from a precedent
ing from these studies was that most cases of noncompli-
because they disagree with it ideologically, issues of
ance were found in a few areas of controversial civil
enforcement of US Supreme Court decisions might arise.
rights and liberties issues, including criminal procedure,
The factors that might cause a court to utilize a precedent
school desegregation, and school prayer (Baum 1978;
are also important to study for similar reasons. Do prece-
Songer and Sheehan 1990), and that overall the rate of
dents set by a minimum—or near minimum—winning
noncompliance was quite low (Songer, Segal, and
coalition carry less weight? Similarly, if the Supreme
Cameron 1994). Nevertheless, the series of compliance
Court erodes a precedent over time (without explicitly
studies has limited utility for understanding policy mak-
overruling it), is it less likely to be faithfully implemented
ing by state courts because a compliance focus inevitably
by lower courts? In the context of state high courts it is
misses much of the dynamics of the relationship among
possible in either situation that a state court might be more
courts in our federal system (Songer 1987, 831). Lower
likely to treat the precedent in a negative fashion or if it is
courts may fail to support the basic policy of the Supreme
ambiguous to utilize ideological influences to help deter-
Court without being overtly noncompliant with any spe-
mine how the precedent should be treated.
cific decision (Wasby 1970; Beatty 1972); therefore, one
In particular, the concurrence by Chief Justice Roberts
cannot gain an adequate perspective on the policy mak-
above elucidates the potential importance of understand-
ing of state courts if analysis is limited to studies of
ing why lower courts might be interested in how US
compliance.
Supreme Court precedents change over time. This quota-
A further shortcoming of limiting a study of policy mak-
tion is a good example of how the “hotly contested”
ing to a compliance focus is the assumption of such studies
nature of precedent over time can be explicitly used as a
that the meaning of precedents remains static. But Hansford
criterion for not following the legal principle of stare
and Spriggs (2006, 2) remind us that the meaning and scope
decisis. Our theory and empirical test examine this con-
of a precedent can change as the Supreme Court revisits and
cept as applied to state courts. Our primary research ques-
interprets it in future cases. They find that policy making by
tion is, do state supreme courts treat US Supreme Court
the US Supreme Court is strongly affected by the “vitality”
precedent positively or negatively based on the strength
of the precedent under consideration, which they define as
of that precedent?1 Specifically, we look at the potential
the relative frequency of positive versus negative treat-
impact of prior treatment by the US Supreme Court of its
ments of the precedent in the past. Moreover, the behavior
own precedent and the size of the winning coalition in the
of a wide variety of decision makers, including state court
precedential decision on the likelihood of positive treat-
judges, can be influenced by the Supreme Court’s decision
ment of that decision by state courts of last resort.
to expand or restrict the meaning or applicability of one of
its precedents (Hansford and Spriggs 2006, 109). Thus, to
The Limitations of Previous
refine our understanding of the ways in which state court
judges make policy, it is necessary to explore the ways in
Studies of Impact and
which those courts change their own interpretations of prec-
Implementation
edent in response to Supreme Court changes in the meaning
of those precedents.
The extensive prior literature on the impact of Supreme
Finally, most of the earlier works focus on particular
Court precedents on the subsequent decisions by lower
areas of law that are very narrow in scope. In contrast, we
courts is primarily concerned with whether or not the
believe it is important to see in the...