Deciding to Not Decide: A Longitudinal Analysis of the Politics of Secondary Access on the U.S. Supreme Court A dissertation submitted to Kent State University in partial fulfillment of the requirements for the degree of Doctor of Philosophy by Andrew Povtak May 2011 Dissertation written by Andrew Povtak B.A., Case Western Reserve University, 2000 J.D., Cleveland State University, 2004 Approved by _____________________________, Chair, Doctoral Dissertation Committee Christopher Banks _____________________________, Members, Doctoral Dissertation Committee Ryan Claassen _____________________________, Mark Colvin _____________________________, Elizabeth Smith-Pryor _____________________________, Graduate Faculty Representative Stephen Webster Accepted by ______________________________, Chair, Department of Political Science Steven Hook ______________________________, Dean, College of Arts and Sciences John R.D. Stalvey ii Table of Contents List of Tables…………………………………………………………………...iv Acknowledgements……………………………………………………………v Chapter 1 – Introduction………………………………………………………1 I. An Overview of the U.S. Supreme Court………………………...3 II. Jurisdictional and Procedural Doctrines…………………………8 III. The Elements of Justiciability: Standing, Timing, and Political Question…………………………………………11 IV. Justiciability Issues: Legal and Political Science Research…..18 V. Data and Methods………………………………………………....28 VI. Conclusion…………………………………………………………41 Chapter 2 – Assessing the Attitudinal and Legal Models…………………42 I. Literature Review: Models of Individual Justice Voting Behavior…………………………………………………………….44 II. Data and Methods…………………………………………………55 III. Analysis of Attitudinal and Legal Models………………………..62 IV. Conclusion…………………………………………………………72 Chapter 3 – Secondary Access and the Social Choice Model…………...74 I. Literature Review: Social Choice………………………………...75 II. Data and Methods…………………………………………………83 III. Conclusion………………………………………………………..105 Chapter 4 – The Separation-of-Powers Model and Case Studies……...107 I. Literature Review…………………………………………………108 II. Data and Methods………………………………………………..115 III. Case Studies Analysis…………………………………………...121 A. Justiciability and Jurisdiction in the Warren Court…….121 B. Justiciability and Jurisdiction in the Burger Court……..130 C. Justiciability and Jurisdiction in the Rehnquist Court…136 IV. Quantitative Analysis…………………………………………….144 V. Assessing the Strategic Model………………………………….155 VI. Conclusion………………………………………………………..161 Chapter 5 – The Roberts Court, Secondary Access, and Beyond……...163 Appendix A……………………………………………………………………178 Works Cited…………………………………………………………………...179 iii List of Tables Table 1.1 – Segal-Cover Scores of Supreme Court Justices on the Warren, Burger, and Rehnquist Courts………………………………………….34 Table 2.1 – Legal Model………………………………………………………………63 Table 2.2 – Legal Model with Attitudinal Variables………………………………...64 Table 2.3 – Legal/Attitudinal Model including Interaction Variables……………..70 Table 3.1 – Ideological Blocs by Period……………………………………………..86 Table 3.2 – Social Choice Model…………………………………………………….91 Table 3.3 – Social Choice Model with Institutional Variables…………………….93 Table 3.4 – Social Choice Model with Institutional Variables and Interactions…94 Table 3.5 – Expanded Individual-Level Model with Social Choice Variables…101 Table 3.6 – Expanded Individual-Level Model with Social Choice Variables and Interactions………………………………………………………..104 Table 4.1 – Separation-of-Powers Model………………………………………….145 Table 4.2 – Separation-of-Powers Model with Ideological and Natural Court Controls………………………………………………………………….147 Table 4.3 – Expanded Individual-Level Model with Separation-of-Powers Variables………………………………………………………………...150 Table 4.4 – Expanded Individual-Level Model with Separation-of-Powers Variables and Interactions ……………………………………………153 Table 4.5 – Strategic Model of Individual Justice Votes…………………………156 Table 4.6 – Strategic Model with Interactions……………………………………..158 Table 5.1 - Predicted Values of Significant Independent Variables Based on Strategic Interactive Model…………………………………………….168 iv Acknowledgements The author would like to express his sincere thanks to his dissertation chair, Christopher Banks. Without your guidance, advice, and patience, this dissertation would probably never have gotten done. The author would also like to thank his committee members for their valuable and much-appreciated input: Ryan Claassen, Mark Colvin, and Elizabeth Smith-Pryor. Most of all, the author wants to express his heartfelt gratitude and love for his wife, Jennifer. Your support and patience through my years of graduate school, not to mention the financial sacrifice, made this dissertation possible. Finally, the author wishes to dedicate this dissertation to his son, Alexander, who will turn a year old before the author graduates. v Chapter 1 – Introduction … To say that any first case is always a poor one in which to pronounce new principles is no doubt an overgeneralization. And yet it is not far wrong. A sound judicial instinct will generally favor deflecting the problem in one or more initial cases, for there is much to be gained from letting it simmer, so that a mounting number of incidents exemplifying it may have a cumulative effect on the judicial mind as well as on public and professional opinion. - Alexander Bickel, The Least Dangerous Branch, 1962. The United States Supreme Court‟s decision-making process has been studied for many years, and much has been written about its various factors. A number of models have been introduced to explain the justices‟ decision-making behavior, ranging from traditional legal models to newer ones based on individual justices‟ attitudes. Other models incorporate not only individual attitudes, but the effect of institutional constraints as well. Over the years, models that study, in whole or in part, the attitudes of the justices have become overwhelmingly popular. One of the basic precepts of these models is that Supreme Court justices will normally vote in concordance with their political preferences and policy goals (see, e.g., Segal and Spaeth 1993). While much research has been devoted to parsing the elements of attitudinal decision-making, less attention has been paid to the variety of tools justices can use to make such decisions. Some research focuses on the institutional and procedural rules that constrain the Court and its justices (see, e.g., Gillman and Clayton, eds., 1999). Little attention, however, has been paid to the influence of jurisdictional and 1 2 procedural doctrines, including the doctrine of justiciability. These “secondary access” issues (as opposed to primary access issues raised by Court decisions at the certiorari stage) may have great significance in judicial decision-making because they can be used by the justices as discretionary tools to achieve policy goals. For instance, a conservative majority on the Court could decide that a liberal plaintiff (such as an environmental protection group) lacks the standing to challenge a particular regulation that is favorable to businesses and industry. The Court‟s decision, then, passes on the actual merits of the claim. Such decisions have both procedural and substantive effects. In the above hypothetical, the Court‟s decision signals that the liberal plaintiff is not a party properly before the Court. Procedurally speaking, this means that there is no legitimate decision that a court could make, since the claim may be too abstract (the liberal plaintiff possibly does not claim a specific injury to itself, but one suffered by the public) (Segal and Spaeth 2002). Substantively, the Court also sends signals to future litigants. By “deciding to not decide” (Bickel 1962), the conservative majority has actually made a strategic, political decision that has just as much policy weight as would a decision on the merits. Such judicial behavior signals to future liberal claimants that the merits of their potential suits may not even be considered by the Court, thus discouraging them from using federal courts to effectuate policy change. It also demonstrates to future conservative litigants that the conservative justices would grant access to advance conservative legal claims (Segal and Spaeth 2002). 3 This area of decision-making has been understudied in political science. The dissertation‟s focus is twofold: to analyze longitudinally justiciability issues in judicial decision-making spanning the Warren Court (1953-1969), the Burger Court (1969-1986), and the Rehnquist Court (1986-2005) in order to discover the decision-making model of best fit, and to offer insight into the avenues of access available to potential litigants. The dissertation analyzes trends in the use of the issues of standing, mootness, political question, and jurisdiction to determine how justices over time have exercised their discretion to achieve policy goals; and how justiciability decisions affect future petitioners, respondents, or third party organized interests. As outlined below, the analysis investigates how individual, group, and external dynamics influence justice decision-making in these issue areas. This corresponds to the decision-making and access literature, but it also addresses critical questions on issue areas traditionally overlooked by political scientists. As such, it fills in a gap in the academic literature by providing a new understanding of judicial behavior and litigant access to the nation‟s highest court. I. An Overview of the U.S. Supreme Court An important prerequisite to understanding judicial decision-making is