Supreme Courts Research Paper

Over the latter part of the twentieth century scholarly interest in these courts has grown significantly due to several developments. The growing capacity of rights-advocacy and other organizations to pursue sustained litigation, growing complaints about bureaucratic abuses, and a weakening of centralized governmental power have encouraged many supreme courts, in a wide array of countries, to intervene increasingly frequently and actively in the policy process (Epp 1998, Tate and Vallinder 1995). At the same time, many observers have contended that strong and independent supreme courts play a key role in fostering the conditions for constitutional democracy, the rule of law, and the protection of individual and minority rights (Henkin and Rosenthal 1990, Stotzky 1993), as well as property rights and economic development. These are heavy burdens to bear, and the capacity of supreme courts for achieving a wide range of policy goals is often exaggerated. Although supreme courts are not without significant influence, their power is constituted and thus also limited by their countries’ particular political, social, and economic structures. Nonetheless, the conditions favoring active policy intervention by supreme courts show no signs of abating, and scholarly attention to them is likely to increase.

1. Institutional Structure

1.1 The Main Types

Supreme courts take a wide variety of forms, and are related to other political institutions in a wide variety of ways, but nonetheless fall within two main types reflecting the broad division between the common law and civil law traditions. In commonlaw countries, a single national supreme court has general jurisdiction over a wide range of cases in virtually all areas of the law arising in lower courts. These courts are frankly recognized as law-making bodies (through their development of caselaw), and traditionally have been valued for their roles in checking executive discretion and lending coherence and consistency to their country’s caselaw. They exercise these roles almost exclusively in cases arising out of concrete disputes between two or more parties; the losing party in a lower court may appeal the decision to a superior court, and a small proportion of these appeals ultimately reaches the country’s supreme court where review, in theory, is confined to disputes over law (and not facts). This model is found today in countries throughout the former British empire, particularly in the United States, Canada, Australia, India, and in Africa, particularly Ghana, Kenya, Nigeria, as well as South Africa.

In some common-law countries, particularly the USA and countries following its model, the supreme court possesses the power of judicial review to strike down legislation as unconstitutional, but typically only incidentally to resolving disputes between two or more parties (a system known as ‘concrete review’). In other common-law countries—those with parliamentary sovereignty, particularly Britain—the supreme court has no such power but nonetheless exercises relatively broad authority to check administrative discretion. Following the enormous symbolic influence of the US Supreme Court’s attack on racial segregation and its creation of new individual rights in the 1950s and 1960s, some supreme courts in common-law countries, particularly Canada and India, shifted markedly from the British to the American model by increasingly exercising the power of judicial review, particularly in the area of individual rights (Epp 1998; Knopff and Morton 1992). Under the growing influence of European law, even the Appellate Committee of the House of Lords, Britain’s supreme court, has made decisions that appear to be edging toward a frank exercise of judicial review, a trend that is likely to be reinforced as Britain’s new bill of rights gains authority.

Civil law systems, by contrast, have been heavily influenced by the French Revolution’s efforts to limit the power of courts and to foreclose the development of an independent, powerful, and active judiciary headed by a single supreme court. Consequently, the supreme judicial power in many civil law countries is divided into three (or more) distinct institutions, each with a specialized jurisdiction (Jacob et al., 1996, Merryman 1985). Thus, in France, the ordinary judiciary, which is headed up by the Court of Cassation, traditionally has been strictly forbidden from exercising judicial review or in any other way challenging legislative or administrative acts. The value of some mechanism for checking administrative acts was quickly recognized, however, resulting in the creation of a separate administrative court, the Contentious Section of the Council of State (hereafter, the Council of State), which now functions as the supreme court for the administrative court system. With the growing interest in constitutionalism after World War II, many civil law countries added a separate constitutional court with the power of judicial review over legislation, reflecting the belief that the ordinary supreme court was insufficiently statesmanlike, too conservative, or too tied to a prior regime, to give meaningful effect to constitutional provisions (Cappelletti 1989, p. 145, Favoreu 1990, Merryman and Vigoriti 1967). In countries in which the constitutional court decides challenges to existing laws, that court and the ordinary supreme court have at times developed sharply conflicting interpretations of the validity of particular laws, which has led to significant tensions between these courts (see e.g., Krug 1997, Merryman and Vigoriti 1967). The civil law model—with multiple courts of last resort—has been adopted throughout much of Europe, many parts of Africa, the Middle East, and Latin America.

The strength of the pressures favoring active supreme court participation in the policy process are evident in the history of the French system. The French Court of Cassation originated as a legislative tribunal with power only to quash incorrect judicial interpretations of law, but over time it adopted a forthright appellate function and eventually was formally converted into the ordinary court system’s supreme court; it has since engaged in significant judicial policy-making (Merryman 1985); (for parallels in Britain, see Stevens 1978). Similarly, although the Council of State is not a part of the regular judiciary, it has evolved to a position of great independence within the administrative branch, adjudicates the legal claims of individuals against the state bureaucracy, exercises judicial review over administrative regulations (which constitute a substantial proportion of French law), and has served as a model for supreme courts elsewhere (Brown and Bell 1993, Hill 1993, Merryman 1985). Although formally there is no doctrine of stare decisis in civil law systems, in practice the decisions of the Court of Cassation and the Council of State gain wide adherence in lower courts and constitute a body of ‘jurisprudence’ that is similar in many ways to caselaw (Merryman 1996).

The institutional structures of supreme courts in Latin America mix elements of the US and French models (see e.g., Barker 1986). Thus, most Latin-American countries have a single supreme court with the power of judicial review and with general jurisdiction over appeals from a variety of ordinary courts, but many deny to the inferior courts the power of judicial review, and even the supreme court’s power of judicial review in most of these countries is limited to suspending the application of a law in a particular case, not invalidating the law itself. Some countries in the region follow the French model by denying the supreme court jurisdiction over the administrative courts; some countries’ supreme courts hear constitutional issues that are referred by the legislature, and Columbia has both a regular supreme court and a separate constitutional court.

1.2 Agenda-Setting, Workload, And Internal Structure

The workload of many supreme courts has increased tremendously in recent years, providing significant opportunities for creative judicial policy-making (McWhinney 1986). To better manage rising caseloads, some countries have created intermediate appellate courts and have granted their supreme court significant discretion over which cases to decide. Such reforms acknowledge and enhance the policy-making role of the supreme court, and courts that have this discretion typically use it to expand their policymaking activities by building a coherent agenda that commonly has focused on constitutional issues (Kagan et al. 1977, Pacelle 1991). Granting the supreme court discretion over its judicial agenda is more typical of common law than civil law systems, as appellate review traditionally has been viewed in the former as an extraordinary resort, whereas in the latter it is viewed as a regular aspect of the judicial process (Damaska 1986, Shapiro 1981). Countries that have not granted discretion over case selection to their supreme courts—for instance, India and France—are virtually forced by rising caseloads to expand the number of judges on the court; this is often accompanied by a division of the court into several panels (or ‘chambers’ or ‘benches’) specializing in different areas of the law.

Supreme courts differ, too, in how decisions are issued. The decisions of common-law supreme courts typically report significant disagreements among the deciding justices. Some, like the supreme courts of Canada and the United States, issue a single majority opinion along with dissenting opinions; others report separate (‘seriatim’) opinions written by each of the justices. Civil law courts, by contrast, present a public face of consensus that conceals any politically motivated disputes among the judges. Modes of publication differ as well: generally, the larger the court’s caseload, the smaller the percentage of decisions that is published. Although the most important decisions typically are published, a body of research shows that in lower courts decision-making patterns in published and unpublished decisions differ significantly.

These various internal structures provide senior supreme court justices with different opportunities and constraints for manipulation of the decision agenda. Thus, in courts that are divided into separate panels, the chief justice may influence outcomes in particular cases through exercise of authority to assign justices and cases to particular panels. In courts that meet as a whole, as in the USA, the chief justice or the senior justice in the majority similarly may influence case outcomes by exercising authority to assign the responsibility for writing the majority opinion (see e.g., Epstein and Knight 1998, pp. 125–35).

2. Supreme Courts In The Political Process

2.1 Political Influences On Supreme Courts And Their Legitimacy

Supreme courts are political institutions and are influenced by the political process; but the ways in which they are political, and the nature and paths of political influence vary considerably. Although countries have adopted a wide array of constitutional and statutory provisions aimed at striking a balance between judicial independence from undue political manipulation and judicial responsiveness to widespread popular values, the effects of these measures are strongly shaped by several key factors related to the broader structure and distribution of political and organizational power in each society.

First, the more centralized is governmental power, particularly in the executive, the greater is the degree of direct manipulation of the supreme court by officials in these other institutions. At one extreme, military coups or the exercise of emergency powers by governing regimes are commonly associated with sharp limitations on the authority of a country’s supreme court and direct manipulation of the court by the regime (Tate 1993). At the other extreme, in countries in which governing power is greatly divided either by a federal structure or an American-style separation of powers, or both, the paths of influence on the supreme court are more attenuated, affording the supreme court greater room for maneuver. Between these ends of the continuum lie many intermediate instances. The supreme courts of Latin-American republics and Japan, where political power is highly centralized, rarely challenge governmental policies or intervene in the policy process (Itoh 1989, Stotzky 1993, Verner 1984). Nonetheless, even supreme courts in pluralistic systems— e.g., the United States and Canada—rarely challenge directly the key policies favored by the national governing coalition.

Second, political influences on supreme courts are conditioned by the degree of pluralistic conflict over selection of justices and the degree of diversity in the pool from which justices are drawn. At one extreme, in a pattern more typical of common law than civil law countries, are courts whose appointment processes are subject to open political conflict between competing factions and whose justices are drawn from a relatively diverse population that includes politicians, government officials, and law professors. Thus, in the United States, the constitutional requirement for Senate confirmation of nominations made by the President has afforded the opportunity for open, pluralistic conflict over appointments to the Supreme Court (Maltese 1995). At the other extreme are systems that insulate appointment processes from popular pressure and which draw judges from an insular elite, a pattern typical of civil law countries. In some civil law countries, the judiciary is largely self-regulating; judges are selected by competitive examination after receiving specialized legal training, and they advance through the judicial hierarchy on the basis of seniority and the approval of superior judges. In other civil law countries, the executive dominates judicial recruitment and promotion to the supreme courts. Often the two factors are found together, resulting in highly-insular supreme courts.

For instance, in Chile the Supreme Court annually evaluates and ranks all of the country’s judges, and appointments to the Court are made by the executive from a short list of nominees selected by the Court itself from among the lower judiciary; the system discourages the development of diversity of opinion and creativity within the judicial ranks, and, as a consequence, the Court has remained very quiescent over most of its history (Stotzky 1993, Vaughn 1992–93). Although the differences between civil law and common law patterns of appointment to supreme courts thus loom large, the dichotomy does not account for all variations. In the common-law world, the process of appointment to the US Supreme Court is notoriously open and conflictual, while for the British higher judiciary it is highly insular. In France, judges on the Court of Cassation are drawn exclusively from inferior courts; by contrast, members of the Council of State are drawn not only from inferior administrative tribunals but also from the administrative bureaucracy and academia (Brown and Bell 1993, pp. 78–80). In general, the insularity of the recruitment process in continental Europe appears to be gradually eroding, with potentially significant implications for the judicial role.

Third, the degree of popular legitimacy of supreme courts and the nature and diversity of external coalitions of support for them place constraints on direct manipulation of these courts by other govern- mental officials. Some supreme courts have gained significant popular legitimacy, while others remain relatively unsupported; judicial legitimacy, ironically, may be cultivated by courts themselves through active intervention in the policy process that attracts external coalitions of support (Gibson et al. 1998). The ability of courts to cultivate supporters, however, is con- strained by the extent of litigational resources and organizational pluralism in civil society; strong societies composed of numerous litigation-advocacy organizations are a key condition for the development of active judicial agendas (Epp 1998). Where coalitions of support are diverse and politically strong, they have played key roles in supporting supreme courts against measures aimed at curbing their power. This is clear, for instance, in comparing the limited success of attacks on the US Supreme Court prior to 1937 (Ross 1994) with the Gandhi government’s relatively greater influence over the Supreme Court of India in the 1970s (Baxi 1980, Epp 1998). In general, judges in common- law countries tend to be accorded relatively high status and respect, while the civil law tradition has cultivated a lasting and deeply-entrenched disrespect for the judicial role and for judges (Merryman 1996).

Although the various factors just summarized are conceptually distinct, they are mutually reinforcing in practice. Governing systems in which political power is decentralized have tended to accord greater symbolic status to their judges, particularly to their supreme court justices; have tended to develop pluralistic and even conflictual appointment processes that select justices from a diverse population; have tended to cultivate broad coalitions of support around their supreme courts; and their supreme courts have tended to be relatively actively engaged in the policy process. By contrast, governing systems in which political power is centralized have tended to accord their judges, and even their supreme court justices, the lowly status of legal bureaucrats; have tended to select these justices through an executive-dominated process from highly insular pools of legal professionals; and, as a consequence, these courts have developed highly formalistic decision processes that yield politically- acquiescent decisions and which rarely cultivate sup- port in the broader population. The latter extreme is exemplified by the insular judicial bureaucracies of Latin America that have few sources of popular support—a pattern that is surely compounded by the effects of economic inequality on the degree of organizational pluralism in civil society.

2.2 The Growth In Policy Intervention By Supreme Courts, And The Limits Of Their Power

Supreme courts, particularly in governing systems in which political power is not highly centralized, have increasingly intervened in the policy process in recent decades, in areas ranging from individual rights to environmental policy. Judges in active policy-making supreme courts commonly have developed relatively high degrees of individuality, and, consequently, these courts are subject to relatively open internal conflict that has made possible the quantitative study of decision-making patterns. Several partially conflicting strains have developed in these studies. One, called the ‘attitudinal model,’ posits that justices’ votes directly reflect their political attitudes toward judicial policies; this theory, although originally based on studies of the US Supreme Court (Segal and Spaeth 1993), has now been applied elsewhere as well (Morton et al. 1995). A second strain of research, sometimes labelled ‘new institutionalism,’ rejects the claim that justices’ decisions directly reflect their policy preferences (Clayton and Gillman 1999). One variant, influenced by rational choice theory, posits that in attempting to achieve their policy goals, supreme court justices temper the raw exercise of their preferences through strategic action that takes into account the preferences of other actors (and thus also of certain institutional norms) (Epstein and Knight 1998). A second variant of new institutionalism emphasizes the influence of legal norms: these studies show that many decisions, particularly in the agenda-setting process, are constrained by legal factors and are reached unanimously (Perry 1991), and that legal assumptions establish the foundations and boundaries of judicial decision-making and thereby constrain the choices recognized by the justices (Gillman 1993).

The extent to which supreme courts are capable of effecting substantial changes in governmental policy, too, remains a matter of dispute. It is clear that supreme courts have no enforcement authority of their own and thus depend for implementation of their decisions on the actions of public officials, private individuals and organizations. On this basis, Gerald Rosenberg (1991) has argued that policy reform decisions of the US Supreme Court have led to actual reforms only in very limited circumstances, particularly when they are aided by sympathetic officials or a sympathetic population, or are subject to implementation by market forces. Michael McCann (1994), however, has shown that judicial decisions provide strategic resources that may be used by social movements, organized groups, and public officials to substantial effect (albeit often in ways unanticipated by the judiciary). In some countries, indeed, particular supreme court decisions undoubtedly have led to substantial policy changes. In the USA, time-series analyses have revealed that major decisions by the US Supreme Court have significantly influenced news media attention to particular issues (Flemming et al. 1997). Taken as a whole, the increasing policy intervention of supreme courts, and of courts in general, has contributed to the ‘judicialization’ or ‘legalization’ of policy and administrative processes (see e.g., Tate and Vallinder 1995).

3. The State Of Social Scientific Research On Supreme Courts

Research on supreme courts has advanced remarkably in the late twentieth century. Scholars have developed sophisticated quantitative databases of decision-making patterns and of relations between supreme courts and some aspects of governmental systems and societies at large. Additionally, research agendas are increasingly based on social scientific theories and thus increasingly attempt to explain rather than merely to describe. Yet important gaps remain. The cognitive revolution in psychology has as yet been largely ignored in studies of supreme court decision-making. Scholarly attention, moreover, is often directed exclusively to courts’ internal decision-making processes even though it is widely recognized that judicial policies are commonly transformed in the implementation process. Most of the existing social scientific research on supreme courts has focused on a handful of highly active courts, particularly those of the United States and Canada, while many other courts, particularly the supreme courts of cassation in the civil-law world, have been largely ignored. Finally, although research on supreme courts in many parts of the world has expanded in the 1990s, only a few truly comparative studies have been done.

Nonetheless, our understanding of supreme courts has grown. The body of social scientific research suggests both that supreme courts may contribute to the broader goals that many observers in recent years have pinned on them—the protection of individual and minority rights and the cultivation of constitutional normal more generally—but also that the extent to which they support these goals is conditioned by a range of factors, particularly the degree to which political power in the governing system is centralized, and the degree to which these courts enjoy popular legitimacy and are supported by coalitions of organizations in civil society.

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