Deconstructing and Constructing Judicial Activism: A New Measure Applied to the Fifty State Supreme Courts Público
Vigilante, Katherine (2010)
Published
Abstract
Abstract
Deconstructing and Constructing Activism: A New
Measure
Applied to the Fifty State Supreme Courts
by Katherine Vigilante
A primary goal of scholarly work on judicial activism is to
determine the factors that
generally promote and deter activism. Results have important
implications for
institutional design and maintenance. These analyses typically rely
on case level data that
force a single tool and/or issue focus in order to assess activism
in multiple contexts. As
the focus changes, conflicting characterizations of the same court
as activist result. More
seriously, conflicting results are reported when hypothesis testing
is conducted,
suggesting error on the dependent variable. To ameliorate these
serious measurement
problems, a multi-informant survey was constructed to assess
perceptions of activism of
the fifty state supreme courts. Survey questions were mapped to two
conditions of
activism: judicial policy independence and judicial policy impact.
Additionally, questions
were addressed to two types of court activities: those regarding
the specific actions taken
by courts in specific policy areas and those concerning general
policy activity by a court
across issues.
Varying response rates across states and variation in respondent
agreement within states
caused the validity of the measure to be threatened. To address
this threat, high levels of
respondent agreement were required and states with too few
responses were omitted.
Hypothesis testing yielded very little leverage on activism when
both conditions of
activism, independence and impact, were merged (either specifically
or in general). When
independence and impact were treated separately, however, analysis
supported the
positive relationship between general independence and the presence
of an intermediate
court of appeals. Results were contrary to the prediction that
appointed and/or appointed
and retained judges are generally more independent than their
elected counterparts. Given
dramatic increases in campaign spending on judicial elections,
these findings may call for
a closer examination of issues relating to selection and general
independence of state
supreme court judges.
Table of Contents
CONTENTS
Chapter 1 The Defining and Study of Activism: A Literature Review........... 1
Aligning Judicial Policymaking and Judicial Activism........ 2
Existing Problems Conceptualizing and Measuring Activism........ 9
Deficiencies in Measuring Judicial Activism........ 10
Judicial Activism Defined as Changes to the Current Status........ 10
Judicial Activism as Conflict Producing Behavior........ 12
Inconsistency and Its Implications........ 15
Lack of a Comprehensive Measurement Approach........ 16
Single Case and Small Comparative Studies........ 19
Large N Studies of Activism: Single Tool Approaches........ 21
Why Lack of Comprehensiveness is a Problem........ 23
Implications of Deficient Measures: Two Important Implications........ 27
The Need for a General Theory of Judicial Activism.... 27
Assessment of Systemic Causes of Activism Requires a New Measure.... 28
Conclusion........ 31
Chapter 2 Research Design: Measuring Judicial Activism Using an Elite Survey........... 32
Why Focus on State Supreme Courts?........ 32
Policymaking by State Supreme Courts........ 33
School Finance.... 33
Tort Reform.... 34
Right to Die.... 36
Comparative Advantage of Studying State Supreme Courts........ 37
Measuring Activism Through Multiple Informant Surveys........ 38
Elite Survey Research in Social Science.... 40
Elite Surveys: Perceptions versus Reality.... 45
Implementing the Survey........ 47
Conclusion........ 54
Chapter 3 Conceptualizing and Measuring Judicial Activism........... 56
Judicial Activism: Concept Construction........ 56
Ontology versus Semantics........ 57
Conceptualizing Activism: Summing up........ 65
Measuring Judicial Activism........ 67
Measuring Independence.... 68
Measuring Impact.... 72
Conclusion........ 75
Chapter 4 State Supreme Courts in the Eyes of Elites: An Aggregate Assessment........... 77
Condition One: Perceptions of Judicial Policy Independence........ 79
Indicator One: Independent Policy Preference Seeking.... 79
Indicator Two: Conflict (Do Courts Avoid It?).... 83
Conflict Explored 85
Indicator Three: Innovativeness.... 90
Condition Two: Perceptions of Judicial Policy Impact........ 100
Indicator One: Policy Breadth.... 100
Respondent Perceptions versus Caseload Data 111
Condition Three: Strategic Influence........ 115
Indicator One: Implementation.... 117
Ideological Differences and Implementation 125
Issue Differences and Implementation 127
Conclusion........ 129
Chapter 5 State Supreme Courts in the Eyes of Elites: State Level Assessment of Independence........... 134
Employing Survey Responses to Assess Activism: Reliability Explored........ 134
An Overview: The Role of the Court?........ 139
Perceptions of Judicial Policy Independence........ 140
General Measures of Independence........ 140
Indicator One: General Policy Preference Seeking.... 140
Indicator Two: General Conflict (Do Courts Avoid It?).... 145
Measuring Conflict Directly 146
Measuring Conflict Indirectly 148
Indicator Three: General Innovation.... 151
Specific Measures of Independence........ 152
Indicator One: Preference-Seeking in Specific Cases.... 152
Indicator Two: Conflict in Specific Cases.... 152
Indicator Three: Innovativeness in Specific Cases.... 156
Summary: Measuring the Independence of State Supreme Courts........ 158
Summary Measure of Independence: General.... 159
Summary Measure of Independence: Specific.... 164
Chapter 6 State Supreme Courts in the Eyes of Elites: State Level Assessment of Impact........... 170
Perceptions of Judicial Policy Impact........ 170
General Measures Impact........ 171
Indicator One: General Judicial Policy Breadth.... 171
Breadth Explored: In What Areas Are Courts Active?........ 177
Indicator Two: General Strategic Influence.... 178
Indicator Three: General Implementation.... 181
Specific Measures of Impact........ 181
Indicator One: Specific Judicial Policy Breadth.... 181
Indicator Two: Specific Strategic Influence.... 184
Indicator Three: Specific Implementation.... 184
Summary Measure of Impact: General........ 189
Summary Measure of Impact: Specific........ 194
Measuring Activism: Joining Independence and Impact........ 198
Chapter 7 Measuring Judicial Activism and Assessing its Determinants in State Supreme Courts........... 204
Measuring Activism: Joining Independence and Impact........ 204
Scales of Judicial Activism Compared........ 209
Lack of Consistency and Implications for Hypothesis Testing........ 215
Variables and Hypotheses........ 215
Structural Variables........ 216
Descriptive and Political Variables........ 219
Determinants of Activism Explored........ 222
Conclusion........ 225
Chapter 8 Assessing and Measuring Judicial Activism: A Way Forward........... 227
Substantive Results........ 228
Lessons Drawn: A Way Forward........ 232
Conclusion........ 235
Bibliography........... 238
Appendix A. Respondent Identification, Selection, and Contact Protocol........... 247
Appendix B. Code Book........... 249
Appendix C. Survey Blueprint........... 253
Appendix D. Modification and Avoidance Explored........... 257
List of Tables
Table 1.1: Scales of Activist State Supreme Courts Based on Three Different Measures of Activism........... 25
Table 1.2: Spearman's Rank Order Correlations of State Supreme Court Activism........... 26
Table 1.3: Suggested Determinant of Activism Based on Three Different Measures of Activism........... 29
Table 2.1: Response Rates by Groups........... 50
Table 2.2: Response Rates by State........... 51
Table 3.1: The Two Conditions of Activism and the Three Indicators of Each........... 66
Table 4.1: Attentiveness of Respondents to Their Respective State Supreme Court........... 78
Table 4.2: Respondent Agreement That High Court in Their State Follows its Own Political Preferences in Making Decisions........... 80
Table 4.3: Respondent Agreement That High Court Makes Good Faith Effort to Follow Legislative Intent in Making Decisions........... 81
Table 4.4: Cross Tabulation of Respondent Views on Policy Preference Seeking (Collapsed) and Deference to Legislative Intent (Collapsed)........... 82
Table 4.5: Respondent Agreement That High Court Avoids Conflict with the Legislative and Executive Branches in Making Decisions........... 84
Table 4.6: Legislative and/or Executive Agreement with High Court Decisions across State by Most, Second Most, and Third Most Influential Areas of Court Decisions........... 86
Table 4.7: Based on Average Ideological Given by Respondents per State per Institution (Groups Indicate High Court Placement to Each Institution)........... 89
Table 4.8: Legislative Response in First Year to Court Decision in Area of Most Influence by Legislative Agreement........... 96
Table 4.9: (Court First) Legislative Response in First Year to Court Decision in Area of Most Influence by Legislative Agreement........... 97
Table 4.10: (Legislature First) Legislative Response in First Year to Court Decision in Area of Most Influence by Legislative Agreement........... 98
Table 4.11: Issue Activity by State Supreme Courts 1999 to 2002 (Frequency and Percentages of Respondents Flagging These Issues of Total Number of Responses across States)........... 102
Table 4.12: Areas of Greatest Influence by Courts as Indicated by Respondents across States........... 106
Table 4.13: Comparison of Respondent Perceptions of Activity to Influence by Issue Area across States........... 108
Table 4.14: Issue Activity by Kagan/Kritzer Categories Using Perception Data across the Fifty United States........... 113
Table 4.15: Perceptions of Respondents of Legislative or Executive Modification of the Most Influential Decisions by Agenda Setting Actor........... 119
Table 4.16: Perceptions of Respondents of Legislative or Executive Modification of the Most Influential Decisions by Agenda Setting Actor if Neither Agree with the Court........... 120
Table 4.17: Perceptions of Respondents of Legislative or Executive Avoidance of the Most Influential Decisions by Agenda-Setting Actor........... 123
Table 4.18: Perceptions of Respondents of Legislative or Executive Avoidance of the Most Influential Decisions by Agenda Setting Actor When Neither Agree With the Decision........... 124
Table 4.19: Perceptions of Respondents of Ideological Conflict by Institutions and Modification of the Most Influential Decisions Made by State Supreme Courts........... 125
Table 4.20: Perceptions of Respondents of Ideological Conflict by Institutions and Avoidance of the Most Influential Decisions Made by State Supreme Courts........... 127
Table 5.1: Percent of Respondents in Agreement Their Court Followed its Own Political Preferences in Making Decisions........... 141
Table 5.1A: Percent of Respondents in Disagreement That Their Court Deferred to Legislative Intent When Interpreting Statutes........... 143
Table 5.2: Percent Respondent Agreement That Their Court Did Not Avoid Conflict with the Legislative Branch Ranked From High to Low........... 146
Table 5.2A: State Supreme Courts by Ideological Status........... 149
Table 5.3: Percent of Respondents in Agreement That Their Court's Most Influential Decision(s) Conflicted With Both the Legislature and the Governor........... 154
Table 5.4: Percent of Respondents Reporting Their State Legislature Did Not Act Before the Court in the Area of Most Influence........... 156
Table 5.5A: Rank Ordering of State Supreme Courts on General Levels of Independence........... 159
Table 5.5B: Rank Ordering of State Supreme Courts on General Levels of Independence Requiring 70 Percent Agreement or Disagreement........... 162
Table 5.6A: Rank Ordering of State Supreme Courts on Specific Levels of Independence........... 165
Table 5.7B: Rank Ordering of State Supreme Courts on Specific Levels of Independence Requiring 70 Percent Agreement or Disagreement........... 167
Table 6.1: Policy Breadth: Respondent Agreement Averages of Issue Activity by State Supreme Court........... 171
Table 6.1A: Policy Breadth and Median Scores Compared by State........... 175
Table 6.1B: State Supreme Court Activity by Issue Area........... 177
Table 6.2: Respondent Perceptions of the Strategic Influence of Their State Supreme Court over the Legislature and Governor........... 179
Table 6.3: Specific Breadth Scores by State Supreme Court in Descending Order........... 182
Table 6.4A: Respondent Perceptions of Executive and Legislative Modification of Influential and Conflictual Decisions by State Supreme Courts........... 185
Table 6.4B: Respondent Perceptions of Executive and Legislative Avoidance of Influential and Conflictual Decisions by State Supreme Courts........... 187
Table 6.5: General impact by score and rank order........... 190
Table 6.6: General Impact Scores by State Supreme Court in Descending Order........... 192
Table 6.7: Specific Impact Scores by State Supreme Court in Descending Order........... 194
Table 6.8: Specific Impact Scores Accounting for Error by State Supreme Court in Descending Order........... 196
Table 6.9: General Independence and Impact Ranks........... 198
Table 6.10: Four Measures of Activism........... 200
Table 7.1: General Independence and Impact Ranks........... 205
Table 7.2: Four Measures of Judicial Activism: Independence and Impact Joined........... 207
Table 7.3A: Rank Order of State Supreme Courts Based on General Measures of Judicial Activism........... 210
Table 7.3B: Spearman's Rank Order Correlations for General Measures of Activism........... 212
Table 7.4A: Rank Order of State Supreme Courts Based on Specific Measures of Activism........... 213
Table 7.4B: Spearman's Rank Order Correlations for Specific Measures of Activism........... 214
Table 7.5. Structural Variables Assessed: Spearman's Rho Coefficients and Their Significance Levels for All Four Measures of Activism........... 218
Table 7.6. Descriptive and Political Variables Assessed: Spearman's RHO Coefficients and Their Significance Levels for All Four Measures of Activism........... 221
Table 7.7. General and Specific Independence: Structural, Descriptive, and Political Variables Assessed........... 223
List of Figures
Figure 4.1: Court or Legislative Innovation: Who Acted First in the Areas of Most Influence across States (by Percent Respondents)?........... 92
Figure 4.2: Percent Respondents Indicating Legislative Response within a Year of the Court's Decisions in Areas of Most Influence........... 93
Figure 4.3: Percent of Respondents Indicating Legislative Response to Areas Where the Court Acted First........... 94
Figure 4.4: Percent of Respondents Indicating Legislative Response to Areas Where the Court Did Not Act First........... 95
Figure 4.5: Respondent Perceptions of Whether the Legislature and Governor Take Into Account the Court's Potential Reaction to Their Decisions........... 116
Figure 4.6: Respondent Perceptions of Legislative and Executive Modification to Influential and Conflictual Decisions by State Supreme Courts........... 118
Figure 4.7: Respondent Perceptions of Legislative and Executive Avoidance of Influential and Conflictual Decisions by State Supreme Courts........... 122
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