Bureaucrats in Black Robes

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2020

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Abstract

At the time of its formation, the Supreme Court was noted to have, “…neither FORCE nor WILL, but merely judgment” (Hamilton 1788). For decades, political science research has explored how the Supreme Court achieves compliance from lower courts despite the Supreme Court’s shrinking docket and the politicization of the judiciary. In this dissertation, I explore a series of organizational problems the Supreme Court faces and how the Supreme Court has strategically solved these problems. These strategies, I argue, reflect a traditional bureaucratic organization – complex, with unavoidable procedure and inefficiencies.

The results of this dissertation contribute to political science research and demonstrate how the Supreme Court copes and overcomes its organizational limitations through relying on its managerial tools in order to gain and maintain control over the judiciary. My results indicate that, despite organizational and resource limitations, the Supreme Court is frequently able to organize itself and its procedures successfully and achieve a high degree of compliance by lower courts. There are three important implications drawn out from this dissertation. First, the Supreme Court relies on an oversight system that is akin to a fire alarm rather than a patrol system. Second, lower court actors can act strategically in order to convey critical information to the Supreme Court and may influence which decisions by lower court will be reviewed by the Supreme Court. Third, the Supreme Court actively combats policy drift in lower federal courts, and drift by lower courts is shown to occur when the Supreme Court does not delegate binding rules.

This dissertation employs a non-equivalent dependent variable research design. Chapter Two explores why and when the Supreme Court overrules its own precedents. This chapter argues that the Supreme Court is motivated to achieve compliance from lower courts and maintain its institutional legitimacy when it decides to overrule a precedent. This chapter introduces an original dataset which captures the lower courts’ treatment of precedents that were established by the Supreme Court. The empirical results in this chapter reveal that the Supreme Court is more likely to reverse one of its own precedents once a handful of lower appellate courts have begun to treat it negatively, an action which involves a lower court explicitly stating that it will not apply a precedent in their opinion. I theorize that the Supreme Court can observe how a precedent is applied in lower courts, its agent, and in turn, the Supreme Court can make an informed decision as to whether a precedent should be overruled. This chapter expands political science literature by empirically demonstrating that ideological conflicts do not exclusively motivate the Supreme Court’s decision to overrule and, instead, the act of overruling is a form of institutional and legal maintenance that is well within the Supreme Court’s responsibilities because the Supreme Court is the supervisor of the judiciary.

Chapter Three investigates the role of information at the Supreme Court’s agenda-setting stage. This chapter also introduces an original dataset of majority and dissenting opinions by the courts of appeal. The dataset also notes whether these lower court decisions were appealed to the Supreme Court or not and whether the Supreme Court decided to review the appealed case or not. Notably, the dataset in Chapter Three was developed through the meticulous coding of documents from the archive of personal papers by former Associate Justice Harry A. Blackmun. This chapter empirically demonstrates how lower court judges may ‘blow the whistle’ on their colleagues’ non-compliance with precedent, encourage the losing party to appeal to the Supreme Court, and produce a signal that captures the Supreme Court’s attention and encourages the Supreme Court to review. The results of this chapter emphasize how oversight is inherently problematic in a large hierarchy like the federal judiciary and the role lower court agents may have in shaping the Supreme Court’s agenda.

Finally, Chapter Four concerns how lower courts respond when the justices on the Supreme Court’s bench fail to organize themselves into a majority coalition; in turn, there is no decision produced by the Supreme Court with binding precedential value. Once again, this chapter introduces an original dataset of lower court treatments to majority and plurality opinions by the Supreme Court spanning from 1970 to 2016. The results of this chapter indicate that when the Supreme Court does not delegate a binding rule to lower courts, and instead the Supreme Court only offers a guideline, lower courts react by applying the guidelines they prefer in their opinions and ignoring the ones they find less favorable. This behavior suggests that, over time, the lower courts will drift from each other and the Supreme Court in their application of law in the resolution of similar cases when there is no binding rule. This chapter contributes to political science by empirically demonstrating an aspect of agency studies that is often overlooked in judicial politics – the immediate and long-term consequences of the Supreme Court’s failure to delegate and perform a crucial duty as the supervisor of the judiciary.

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Renberg, Kristen (2020). Bureaucrats in Black Robes. Dissertation, Duke University. Retrieved from https://hdl.handle.net/10161/21512.

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