The Policymaking Role of State Supreme Courts in Education Policy

• DOI: http://doi.org/10.3162/036298007780907914
• Published date: 01 May 2007
• Author: TEENA WILHELM
• Date: 01 May 2007

309State Supreme Courts

LEGISLATIVE STUDIES QUARTERLY, XXXII, 2, May 2007 309

TEENA WILHELM

University of Georgia

The Policymaking Role

of State Supreme Courts

in Education Policy

In this article, I examine the relationship between courts and legislatures from

a comparative perspective. Specifically, I discuss how (1) the ideological composi-

tion of the bench, (2) the propensity of court involvement in a given policy area, and

(3) the presence of an advisory opinion affect the number of bill introductions and

policy enactments by state legislatures. Examination of education policy in the

American states reveals that ideologically distant courts limit the number of bill

introductions and bill enactments in state legislatures. Alternatively, the presence of

an advisory opinion increases policy introduction and enactment in state legislatures.

A fundamental implication of these findings is that courts exert the greatest impact

on policy during the introduction stage of the legislative process. Previous studies

have not examined the introduction stage and have therefore marginalized the real

impact of court influence on policy.

Much attention has been directed toward explaining the impact

of shared power on the policy process. In particular, scholars have

sought to understand how separation of powers in the American

government affects the relationships between branches of government.

Examination of policy through the institutional lens of separation-of-

powers games advances our understanding of interbranch relations and

the role that courts play in the American political system (Epstein and

Walker 1995; Eskridge 1991; Ferejohn and Shipan 1990; Langer and

Brace 2005; Marks 1989; Rogers 2001; see also Vanberg 2001 for a

comparative perspective).

According to separation-of-powers (SOP) games, the prevalent

conception of legislative-judicial relations is that courts alter outcomes

via anticipated reactions from the legislature (Eskridge 1991; Spiller

and Gely 1992). This view posits that judicial outcomes are a function

of perceived legislative behavior. We require a broader view of

legislative-judicial relations, however, if we are to understand the policy

process. In this article, I argue that we need to shift attention to the

310 Teena Wilhelm

legislative branch, as this branch is essentially where policy is formu-

lated. With few exceptions (Flemming 2004; Hausseger and Baum

1999; Marks 1989), scholars have not focused on legislative output—

how legislatures alter outcomes in anticipation of judicial behavior.

Although political science is certainly not short of commentary on the

impact of the judicial branch on public policy (for example, Rosenberg

1991), a separation-of-powers view of the policy process whereby courts

become active participants in policymaking has received little attention.

This is not to say that a revised notion of judicial influence on

policymaking has been completely ignored. In recent years, scholars

have begun to consider this alternative conception of judicial influence

(Langer and Brace 2005; Shipan 1997). The research places courts at

the “front end,” or the agenda-setting stage, of the policymaking process

(Shipan 1997). The logic is that policymakers in the agenda-setting

stage consider the institutional constraints that could affect their

preferred policy outcome. Given these constraints, they structure their

policy decisions so as to maximize political advantage for the future.

The ideological composition of courts has been considered one such

institutional constraint (Langer and Brace 2005). Thus, policymakers

may consider the ideological “mood” of courts to determine whether

judicial intervention is likely to occur if some policy is enacted. Courts,

in this way, serve as reference points for legislators and are treated as

important actors in policy formation. This relationship has been labeled

as a “preemptive” power of courts and can explain how judiciaries

have a role not only as intervening and responsive, but also as passive

determinants in policy formation (Langer and Brace 2005).

The studies noted have advanced our understanding of whether

and how courts serve as agents of change in the policy enactment

process. Still, these studies of preemptive court influence on policy

have not systematically examined both stages of the policy process

(bill introduction and bill enactment). As a result, the extent to which

legislative-judicial relations and their consequences for policy can be

generalized across both stages of the policy process remains unknown.

SOP may affect legislative policy in the introduction stage of the

process. If so, then examination of the enactment stage alone might

lead to inaccurate conclusions about SOP and how it impinges on

legislative policy. A more-complete, more-accurate picture requires

examination of both stages.

Little is known about the interaction between state supreme courts

and state legislatures across bill introductions and enactments.1

Consequently, little attention has been given to the multidimensional

role that state supreme courts have in the policymaking process. In