The Policymaking Role of State Supreme Courts in Education Policy

Published date01 May 2007
Date01 May 2007
309State Supreme Courts
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

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