Study Notes on Strategy on the Supreme Court
Strategy on the Supreme Court
Primary Function of the Supreme Court
The primary function of the Supreme Court is judicial review, which allows the Court to:
Strike down laws, treaties, executive orders, agency rulings, and other governmental actions.
Render these actions null and void if found unconstitutional.
Require decisions to be made by a simple majority vote among the nine members of the Court.
Decisions made by the Court set precedent, meaning the rules and limitations presented become binding for future similar cases.
Individuals who disagree with the Court's decisions have limited recourse:
Attempt to persuade Congress to enact new legislation that complies with constitutional standards.
Lobby for amendments to the Constitution.
Quote from a chief justice stating: "from this Court there is no appeal."
Strategic Behavior in the Supreme Court
The chapter explores two main themes regarding the strategic behavior of justices:
The impact of voting order on strategic opportunities.
The limitations on the power of judicial review by constitutional institutions.
Justices are viewed as rational actors motivated by policy concerns, making decisions based on interpretations of the Constitution and their ideological preferences.
This view contrasts with the common perception of the Court as a politically neutral body making decisions based on objective criteria.
Each justice balances personal well-being, national interest, and ideological goals.
The Value of Voting Last
The strategic advantage of being indecisive or switching votes is examined. Here’s a key example:
Warren Burger, Chief Justice from 1969-1986, engaged in vote switching to maximize influence over Court decisions.
Burger's colleagues noted his tendency for strategic voting, leading others to label his votes as “phony votes.”
Example Anecdotes:
A law clerk confronted Burger about differing claims on his votes—Burger repeatedly denied he had switched votes, asserting they were tentative.
Justice William Brennan labeled his voting patterns as strategic manipulation.
Justice Harry Blackmun implied that Burger would delay committing to a vote until he knew the majority's stand.
Majority Opinions and Their Importance
The majority opinion of the Court elucidates the constitutional rationale for decisions:
In the example of Texas v. Johnson (1989), the Court struck down a federal law against flag burning by a 5-4 vote.
The majority opinion in such cases is critical, influencing future precedents and guiding lower courts.
Various styles of majority opinions can impact the breadth of future applications:
A narrow ruling could apply only to specific contexts.
A broad ruling might establish general principles, fostering less judicial discretion in future cases.
Opinion Assignment Procedures
The assignment of opinion writing is pivotal in determining how the majority's reasoning is presented:
If the Chief Justice is in the majority, they assign the opinion writing.
If not, the most senior associate justice in the majority dictates the assignment.
Example with Internet Access Act of 2000:
If the Chief Justice (Rehnquist) is in the majority, he assigns the opinion.
If he sides with the minority, the assignment responsibility shifts to the senior associate (Brennan), likely leading to a liberal opinion.
Rationality and Strategic Behavior
Burger's voting behavior exemplifies strategic manipulation that maximizes influence over decisions, even if it seems indecisive.
Other justices suspected this behavior—Lauren Douglas criticized Burger's motivations during key cases like Roe v. Wade, indicating his manipulation of the assignment power to influence opinions.
Limits of Judicial Review
Judicial review is not without limits. Key aspects include:
Justices depend on other branches (Congress, Executive) for enforcing decisions—historical examples highlight failures in enforcement of judicial rulings without political or administrative support.
Justices would avoid extreme exercise of judicial review to prevent backlash from public or Congress—reticence to declare widely-used laws unconstitutional without solid legal grounds.
Nature of Judicial Review
Judicial Review Defined: The power to determine if laws and government actions align with the Constitution.
Court's Jurisdiction: Primarily appellate jurisdiction, meaning they cannot proactively engage in cases but must wait for appeals.
Constraints on power manifest through:
The potential outcomes of judicial review:
Uphold existing laws (status quo).
Strike down laws—return policy to pre-enactment state.
Declare agency actions misinterpreted without changing the law’s intent.
Example illustrating limits: If justices deem the Internet Access Act unconstitutional, they can revert to previous regulations but cannot impose new outcomes favoring their preferences directly.
Conclusion on Judicial Review
The Supreme Court's power of judicial review is inherently constrained, ensuring that justices cannot impose their policy preferences without formal procedures or preceding legal frameworks.
Justices possess policy preferences but are structurally limited in how these preferences can impact national law and policy implementation, promoting stability in governance created by law.