Deconstructing and Constructing Judicial Activism: A New Measure Applied to the Fifty State Supreme Courts Open Access

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

About this Dissertation

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School	Laney Graduate School
Department	Political Science
Degree	PhD
Submission	Dissertation
Language	English
Research Field	Political Science, General
Keyword	state court activism supreme
Committee Chair / Thesis Advisor	Giles, Micheal W, Emory University
Committee Members	Walker, Thomas G, Emory University Strahan, Randall, Emory University

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