Lighting the Way: Federal Courts, Civil Rights, and Public Policy

By Douglas Rice

Do our federal courts, including the Supreme Court, lead or merely implement public policy? This is a critical question in the study and practice of law, with a long history of continued dispute and contradictory evidence. In Lighting the Way, Douglas Rice systematically examines both sides of this debate.

Introducing compelling new data on the policy focuses of federal courts, Rice presents the first long-term, comprehensive consideration of the judicial agenda. In doing so, he details the essential role of the Supreme Court and other federal courts in directing attention to issues in American politics through influential relationships with Congress, the presidency, and the public. The dynamics Rice illustrates grow from the strengths of political constituencies in various policy areas and the constitutional powers accorded to the courts. Lighting the Way provides strong evidence that, as long argued but never empirically demonstrated, the courts systematically lead the attention of other institutions on civil rights. The research speaks to a broad and growing literature in political science and sociolegal research on the interactive nature of policymaking and the critical role of legal institutions and social movements in shaping policy agendas.

• Language: English
• Publisher: University of Virginia Press
• Release date: Mar 3, 2020
• ISBN: 9780813943954

Book preview

Lighting the Way

Constitutionalism and Democracy

Gregg Ivers and Kevin T. McGuire, Editors

Lighting the Way

Federal Courts, Civil Rights, and Public Policy

Douglas Rice

University of Virginia Press | Charlottesville and London

University of Virginia Press

© 2020 by the Rector and Visitors of the University of Virginia

All rights reserved

First published 2020

Library of Congress Cataloging-in-Publication Data

Names: Rice, Douglas, 1983– author.

Title: Lighting the way: federal courts, civil rights, and public policy / Douglas Rice.

Description: Charlottesville : University of Virginia Press, 2020. | Series: Constitutionalism and democracy | Includes bibliographical references and index.

Identifiers: LCCN 2019036834 (print) | LCCN 2019036835 (ebook) | ISBN 9780813943947 (hardcover) | ISBN 9780813943954 (epub)

Subjects: LCSH: Courts—United States. | United States. Supreme Court. | Justice, Administration of—United States. | Civil rights—United States. | Public policy (Law)—United States.

Classification: LCC KF8700 .R53 2020 (print) | LCC KF8700 (ebook) | DDC 347.73/2—dc23

LC record available at https://lccn.loc.gov/2019036834

LC ebook record available at https://lccn.loc.gov/2019036835

Cover art: Krisoffer Tripplaar/Alamy Stock Photo

For Mom and Dad

Contents

Acknowledgments

Introduction

1. Perspectives on Issue Attention Dynamics

2. The Judicial Agendas

3. Issue Attention Dynamics in American Politics

4. Issue Attention Dynamics in the Federal Courts

Conclusion

Appendix

Notes

Bibliography

Index

Acknowledgments

The research presented in this book took many years to complete, following me across three institutional homes and many more life events. Throughout, I have had the privilege of the advice, friendship, and guidance of innumerable individuals. The completion of this work is in no small part a tribute to their contributions to my growth as a person and as a scholar.

It was my great fortune to attend Penn State University for my graduate degree. I find it hard to believe that a more supportive and collegial department than that of Penn State may exist. The sparks for this project were set in my very first semester there, when I was assigned to be a research assistant for a Supreme Court project under the supervision of Chris Zorn. Chris would go on to be my adviser throughout graduate school, and he has selflessly and endlessly given of his time to help guide me through the academic experience ever since. His insightful guidance, support, and friendship have had a profound influence on my professional and personal development. I can never repay all the help he has provided, but I owe him my deepest gratitude.

I cannot thank the members of the Political Science Department enough for their help, and perhaps more frequently their patience, during my time at Penn State. I owe particular thanks to Marie Hojnacki, whose incisive comments and attention to detail vastly improved the quality of my work and whose mentoring contributed greatly to my professional development. Likewise, through countless conversations, Burt Monroe has been a profound influence on the direction I have taken as a scholar. Burt has given of his decidedly sparse time to help guide me through a host of considerations as I learned to treat text as data. More important, Burt was everywhere throughout my time in graduate school—no matter how insignificant the event may have been—to provide thoughtful comments and suggestions on my research. I thank him for all his help along the way, and for teaching me the importance of showing up. I am also very grateful to many other present and past faculty at Penn State, including James Honaker, Michael Berkman, Zach Baumann, Doug Lemke, Jeffery Ulmer, Bumba Mukherjee, Adam Nye, Eric Plutzer, Phil Schrodt, Lee Ann Banaszak, and Zaryab Iqbal.

I had the great fortune of sharing the experience of graduate school with a collection of intelligent and fun fellow graduate students. Through their friendship, support, and insightful comments on my research, these colleagues have made me a better scholar. I am particularly indebted to Ben Bagozzi, Andrew Boutton, Vito D’Orazio, Steven Landis, Kathleen Marchetti, Jonathan Moody, and Eitan Tzelgov.

I would also like to thank the National Science Foundation, the College of the Liberal Arts at Penn State University, and the Quantitative Social Science Initiative at Penn State for the financial and research support they have provided for my work. This support ensured that the research was completed in a timely manner, and vastly improved the quality of the work. After leaving Penn State, I greatly benefited from my delightful colleagues at the University of Mississippi, who provided a perfect and supportive environment for me as I started out as an assistant professor and developed this book. My sincere gratitude goes to John Bruce, Conor Dowling, Chuck Smith, Heather Ondercin, Jon Winburn, Bob Brown, and John Winkle for their help and guidance as I set about this process, and to them and the many other great members of the University of Mississippi’s Department of Political Science for being such fantastic colleagues and friends. Finally, I have benefited enormously from the support of my colleagues at the University of Massachusetts–Amherst. Paul Collins deserves particular recognition, as he has been an exceptional colleague and mentor. It is to my great benefit that I need merely walk down the hall to get his insights or opinions, and I thank him for all his help along the way.

I am very fortunate to have been able to work with the team at the University of Virginia Press. I thank Dick Holway for his patience and support. I also thank Helen Chandler for her attention to detail and guidance throughout the process. Finally, to the anonymous reviewers, I owe you tremendously. The constructive recommendations have vastly improved the research in this book, and I am eternally grateful to have had such excellent referees.

Beyond the academic community, I would never have arrived at this point without a tremendous support system of friends and family. Brian Schneider deserves particular recognition, as his calm perspective settled many a brewing fiasco, and his friendship and support helped me through my time in graduate school. I have also been blessed with not one but two amazing families. Thank you to the DiFilippos for embracing me as a member of the family. Their love and support have been priceless. I owe particular gratitude to Deb and Gene, who have gone above and beyond in their support for me. Their trust and faith are more than I ever could have asked for. Thank you also to the Stokes brood, a beautiful family that has never failed to brighten my day. I also owe my sincerest thanks to my brother, Greg Rice, who has been an inspiration to me from the day I could walk. I would not have arrived at, or finished, a doctoral program and a career as a professor without his unfailing guidance. To my girls, Atley and Emryn, thanks for your patience when I just needed to finish a thought, and big thanks for all the smiles and love you bring into my life. And though it is almost certainly inappropriate, I would also like to acknowledge our family dogs—our old pals Nash and Marlie and our new addition Willa—for their endless love and enthusiasm, which never fails to calm me down and cheer me up.

I am especially grateful to my parents and role models, Bob and Linda Rice. I would not be where I am today without their love and support and their many sacrifices. Their strength, in the face of far too many obstacles, has been an inspiration to me throughout my life. As I age, I find myself more and more thankful for all they have done and given. I thank them from the bottom of my heart.

Finally, I am forever indebted to Laura Rice, my partner and my best friend. From the moment we joined up, she has given of herself endlessly, tolerating random late nights and even more random early mornings, predictable breakdowns, unpredictable schedules, and endless proofreading and practice presentations. She has been unceasingly gracious, optimistic, and supportive of my goals, never failing to uplift my spirit when I most needed it. Her mastery of her field, and her constant pursuit of improvement, have been an absolute inspiration to me as a person and as a scholar. Simply put, I can imagine no better person with whom to travel through all the adventures of life.

Introduction

The legislation known as Obamacare—the Patient Protection and Affordable Care Act (PPACA)—took effect March 23, 2010, following months of intense legislative debate. Less than two years later, twenty-eight lawsuits had been initiated in federal courts challenging various aspects of the law. Seven years on from the passage of the landmark legislation, lawsuits were still pending in federal courts challenging a variety of aspects of the law. Meanwhile, in completely separate litigation in the federal courts, a number of lawsuits were challenging the Defense of Marriage Act (DOMA), a fifteen-year-old law defining marriage as between a man and a woman. In response to a district court decision declaring DOMA unconstitutional, the Obama administration stated that the Department of Justice would no longer defend the act, Democrats in Congress introduced the Respect for Marriage Act, and Republicans in Congress took up the legal defense of DOMA.

The PPACA and DOMA exemplify two long-standing but fundamentally opposed theories about the role of the judiciary in the American policymaking process. In the case of the PPACA, landmark legislation led to an immediate increase in judicial attention to an issue area. The pattern reflects what we might call the passive view of courts in the policy process. In this view, courts are cast as generally unbiased interpreters and implementers of the law. The courts’ attention increases only after congressional and presidential attention and legislation, perhaps only if there are controversies during implementation. Accordingly, issue attention within the judiciary has little to no sway over issue attention elsewhere. Proponents of this view point to a variety of formal and informal constraints on the courts—recalling Federalist 78 and the judiciary’s lack of influence over either the sword or the purse—as reasons the judiciary remains unable to systematically influence the attention of other institutions.

In contrast to this passive courts perspective, judicial attention to DOMA sparked increases in both presidential and congressional attention. That pattern reflects a dynamic view of courts and is captured by the often cited example of Brown v. Board of Education, where attention within the federal courts forced other actors to take action (Kluger 1975; Monti 1980; Neier 1982; Murphy et al. 2006; see also Rosenberg 1991). In such cases the courts take a proactive role in the policy process by directing the attention of other institutions to new and unaddressed issues, thereby stoking policy change. According to the proactive courts view, the judiciary’s unique institutional characteristics encourage policy attention within the courts to the issues that are unattended to by other branches of government. The issue attention of courts then precedes and encourages issue attention in other branches.

Proponents of either view of the court can point to a myriad of anecdotal examples that counter one another, similar to the PPACA and DOMA cases discussed above, to support their view. Consideration of these and other anecdotes, though, raises the general question of which of the two perspectives dominates in the macropolitics of American policymaking. Do the courts generally lag other institutions in addressing policy areas, as the passive view suggests, or do they instead spur the attention of other institutions, as the proactive view suggests? Are there factors that influence when and how the courts influence the agendas of other institutions? Whether the courts are agenda setters or simply react to the attention of others is a question unresolved by legal scholars and social scientists, and one with important implications for policymakers. Can interest groups encourage attention to their issues through the judiciary, as some scholars urge them to do (Strolovitch 2007) and as some work suggests they may (e.g., Keck 2009)? Or are interest groups’ efforts at policy change wasted in the courts (Rosenberg 1991)? Can citizens directly influence the attention of government by mobilizing the law on their behalf (Zemans 1983)? Can judges encourage attention to unresolved issues in the law? In sum, what part do the federal courts play in the policy process?

In this book, I propose that the role played by the courts in any policy area is a function of two conditions. First, for the attention of a court to influence the attention of others, I argue the policy at issue must be one for which there is a viable political constituency—activists, for example, interested and mobilized in pursuit of political change—that is benefited or harmed by the decisions of the courts. Without such a latent force, there is no mechanism through which attention in the courts might induce pressure on other institutions to act. This condition incorporates a rich and well-developed sociolegal literature noting the necessity of forces outside the courts in constituting the law as declared by a court (e.g., Epp 1998). Without a constituency capable of leveraging the decisions of courts—interrupting an inertial policy process biased toward maintaining the status quo—the decisions ultimately echo only within the courthouse walls. Thus condition one is a necessary condition for judicial influence on the issue attention of other institutions.

Yet being able to encourage attention does not mean the courts alone influence the agenda of other institutions Instead, satisfying the political constituency condition indicates only that the courts are capable of taking part in an interactive and reciprocal agenda-setting process. In other words, satisfying the constituency condition does not indicate the courts may uniquely encourage attention to particular policies.¹ Frequently, however, policy advocates and scholars alike identify courts as the institutions best suited for precisely this purpose; that is, when other institutions are unreceptive to arguments for policy change, courts are the institution to turn to. On this front, I argue that for courts to exercise unique policy power—in other words, for the courts alone to presage changes in the attention of other institutions—requires satisfaction of what I term the constitutional power condition. By this I mean that for courts to systematically lead the attention of other institutions within a particular policy area without in turn being systematically influenced by other institutions, the courts must have constitutionally based policymaking power within that policy area. In policy areas where the Supreme Court rarely engages in constitutional interpretation and instead generally interprets statutory language, issue attention relationships are likely to be reciprocal, as a policy dialogue occurs between institutions of government. The constitutional power condition—that is, the ownership of constitutionally based policymaking power in an area where constitutional interpretation occurs regularly and with important consequences for lawmaking—provides courts with an important tool to force the attention of other institutions onto an issue.

With both conditions being satisfied by the courts, political constituencies may routinely use the altered battlefields introduced by court decisions to interrupt inertial policy processes and achieve changes in issue attention. By building this framework, I integrate the judiciary into our understanding of the policy process. I examine changes in the issue attention of the primary participants within the federal courts—litigants, judges and interest groups—across each level of the federal courts. Armed with a robust understanding of the federal judicial agenda, I test competing theories of how the issue attention and activity of these actors within the judiciary influence or are affected by attention to policy in Congress, in the executive branch, and among the broader public. Then I narrow my focus to the context of federal courtrooms and assess what the Supreme Court’s attention implies for the attention of litigants, judges, and interest groups in the lower federal courts. Across analyses, I find strong evidence suggesting the primacy of the political constituency and constitutional power conditions in explaining the influence of courts in the policy process and the macrodynamics of issue attention.

With this analysis, my study provides the broadest examination to date of the place of courts in the formation of public policy, and of the broad dynamics of issue attention in American government. It provides the first long-term, comprehensive understanding of the judicial agenda, delineating how issue attention manifests both within the judiciary and between courts and other institutions. This project contributes to our understanding of the place of courts in the policy process, as well as to our understanding of issue attention relationships within the judicial hierarchy. In looking beyond the judicial hierarchy, the research presented here is the first to systematically examine whether federal courts are simply interpreting and implementing policy constructed in other institutions or whether the federal courts can be used to focus the attention of other branches of government on specific issue areas. Here I show the influence of courts across many policy areas, and the unique influence of courts on civil rights issues. Further, within the hierarchy, I examine different policy areas to show the influence of the political constituency and constitutional power conditions in explaining variations in whether the Supreme Court can proactively shift the attention of the federal judiciary by signaling litigants, interest groups, and judges as to areas the Court considers a priority. I find that the courts—long understudied by and underincorporated into studies of policymaking—exert important influences at that most fundamental stage of policymaking: determining whether to pay attention to an issue.

The Importance of Issue Attention

My research starts with the simple proposition that, in politics and policymaking, attention matters. Politics, in the words of Green-Pedersen and Wilkerson (2006, 1040), "is not simply about left-right policy preferences, but also about which