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The Supreme Court in the American Legal System

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  • 28 b/w illus. 57 tables
  • Page extent: 424 pages
  • Size: 234 x 156 mm
  • Weight: 0.59 kg

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 (ISBN-13: 9780521785082 | ISBN-10: 0521785081)




The Supreme Court in the American Legal System



This book examines the American legal system, including a comprehensive treatment of the U.S. Supreme Court. Despite this treatment, the in of the title deserves emphasis, for the authors extensively examine lower courts, providing separate chapters on state courts, the U.S. District Courts, and the U.S. Courts of Appeals. The book analyzes these courts from a legal/extralegal framework, drawing different conclusions about the relative influence of each based on institutional structures and empirical evidence. The book is also tied together through its attention to the relationship between lower courts and the Supreme Court. Additionally, Election 2000 litigation provides a common substantive topic linking many of the chapters. Finally, it provides extended coverage of the legal process, with separate chapters on civil procedure, evidence, and criminal procedure.

   Although this volume contains original research, such research is presented at a level that does not require methodological sophistication. Furthermore, all data used for the authors' original research, and all commands to run the analyses, are provided on the book’s Web site.

Jeffrey A. Segal is Distinguished Professor of Political Science at the State University of New York at Stony Brook. He received his Ph.D. in 1983 from Michigan State University. He is the coauthor of six books, including, most recently, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press, 2002), with Harold J. Spaeth. He is also the author of Majority Rule or Minority Will ( Cambridge University Press, 1999), with Harold J. Spaeth, which won the C. Herman Pritchett Award for best book in law and courts. Segal has also published dozens of scholarly articles, including “Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962–1981,” which won the Wadsworth Award for a book or article ten or more years old that has made a lasting impression on the field of law and courts.

Harold J. Spaeth is Research Professor of Law and Emeritus Professor of Political Science at Michigan State University. He received his Ph.D. from the University of Cincinnati and his J.D. from the University of Michigan. He is the author or coauthor of sixteen books, including Stare Indecisis: The Alteration of Precedent on the Supreme Court, 1946–1992 (Cambridge University Press, 1995), with Saul Brenner; The Supreme Court and the Attitudinal Model Revisited(Cambridge University Press, 2002), with Jeffrey A. Segal; and Majority Rule or Minority Will (Cambridge University Press, 1999), with Jeffrey A. Segal. He is the recipient of a Lifetime Achievement Award from the Law and Courts section of the American Political Science Association and serves as Principal Investigator of the United States Supreme Court Judicial Databases.

Sara C. Benesh is an assistant professor of political science at the University of Wisconsin–Milwaukee. She previously taught in the Department of Political Science at the University of New Orleans and was awarded a grant for research from the National Science Foundation. She is the author of The U.S. Courts of Appeals and the Law of Confessions: Perspectives on the Hierarchy of Justice (2002).





To my coauthor, mentor, and friend, Harold J. Spaeth   –SB

To Lois Kass Kleinberg and the ever-loving memory of Cindy Kass April   –JS

For my grandchildren, Sean Thomas and Samantha Rose Kelly   –HS





The Supreme Court in the American Legal System


JEFFREY A. SEGAL
State University of New York at Stony Brook

HAROLD J. SPAETH
Michigan State University

SARA C. BENESH
University of Wisconsin-Milwaukee





CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
40 West 20th Street, New York, NY 10011-4211, USA

www.cambridge.org
Information on this title: www.cambridge.org/9780521780384

© Jeffrey A. Segal, Harold J. Spaeth, Sara C. Benesh 2005

This book is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.

First published 2005

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication Data

Segal, Jeffrey Allan.
The Supreme Court in the American legal system / Jeffrey A. Segal, Harold J. Spaeth, Sara C. Benesh.
p. cm.
ISBN 0-521-78038-1 (hardback) – ISBN 0-521-78508-1 (pbk.)
1. United States. Supreme Court. 2. Courts – United States. 3. Judicial process –
United States. I. Spaeth, Harold J. II. Benesh, Sara Catherine. III. Title.
KF8742.S433 2005
347.73΄26–dc22   2004019022

ISBN-13 978-0-521-78038-4 hardback
ISBN-10 0-521-78038-1 hardback

ISBN-13 978-0-521-78508-2 paperback
ISBN-10 0-521-78508-1 paperback

Cambridge University Press has no responsibility for
the persistence or accuracy of URLs for external or
and does not guarantee that any content on such
Web sites is, or will remain, accurate or appropriate.





Contents




List of Illustrations page viii
List of Tables x
Preface xiii
I. INTRODUCTION
 1.  Judicial Policy Making 3
      Policy Making 4
      The Mythology of Judging 16
      Summary and Conclusions 17
 2.  Approaches to Judicial Decision Making 19
      Models 20
      The Legal Approach 22
      Extralegal or Policy-Based Approaches 34
      Summary and Conclusions 39
 3.  The Supreme Court in American Legal History 41
      Before the Constitution 41
      The New Constitution 43
      The Marshall Court 44
      The Civil War Era 47
      Economic Regulation 51
      Changes in the State Courts 53
      The New Deal 54
      Supreme Court Supervision of State Courts 55
      First Amendment Freedoms 57
      Criminal Procedure 59
      Equal Protection 60
      The Right to Privacy 62
      The Supreme Court and the Distribution of Power 64
      Summary and Conclusions 70
II. JUDICIAL PROCESS
 4.  Civil Procedure 75
      The Adversary System 76
      Jurisdiction 80
      Pleadings 85
      Discovery 88
      Trial Procedure 89
      Multiparty and Multiclaim Litigation 94
      Summary and Conclusions 96
 5.  Evidence 97
      The Genesis of Evidence Law 97
      Relevance 98
      Hearsay 103
      Circumstantial Evidence 105
      Constitutional Provisions Impacting the Production of Evidence 106
      Privileges 108
      Expert Testimony 112
      Eyewitness Testimony 115
      Summary and Conclusions 117
 6.  Criminal Procedure 119
      Crime 121
      Prearrest Investigations 124
      From Arrest to Trial 128
      Trial 133
      Appeals 140
      Conclusions 141
III. LOWER COURTS IN THE AMERICAN LEGAL SYSTEM
 7.  State Courts 147
      The State Courts 148
      The Selection of State Court Judges 149
      Accessing State Courts 160
      Caseload 171
      State Court Decision Making 172
      Summary and Conclusions 185
 8.  The U.S. District Courts 187
      Origins 190
      Growth 190
      Appointment Process 191
      Jurisdiction 194
      Caseload 196
      Procedures 199
      Decision Making 200
      Conclusion 211
 9.  The U.S. Courts of Appeals 213
      The U.S. Courts of Appeals 215
      Origins 216
      Growth 217
      Appointment Process 218
      Jurisdiction 220
      Caseload 221
      Procedures 226
      Decision Making 230
      Conclusion 241
IV. THE SUPREME COURT
10. Staffing the Court 245
      Presidential Selection 248
      Senate Confirmation 252
      Summary and Conclusions 273
11. Getting into Court 275
      Case Selection 275
      The Supreme Court’s Caseload 281
      Which Cases for Decision? 285
      Future Changes? 296
      Summary and Conclusions 297
12. Supreme Court Decision Making 299
      Process 301
      The (Final) Vote on the Merits: Legal Approaches 305
      The Decision on the Merits: Extralegal Approaches 318
      Conclusions 329
13. Opinions and Assignments 332
      Voting and Opinion Options 332
      Opinion Assignment 337
      Opinion Assignments and Opinion Coalitions 348
      The Politics of Coalition Formation 349
      Who Influences Whom? 354
     Summary and Conclusions 358
V. IMPACT
14. The Impact of Judicial Decisions 363
      The Impact of Courts in America 364
      A Framework for Understanding Impact 365
      Compliance 370
      Impact 380
      The Courts and Public Opinion 388
      Summary and Conclusions 389
Case Index 393
General Index 398




Illustrations




  6.1 Criminal Case Processing in the United States page 142
  7.1 Grant Rate for Petitioners in Texas Supreme Court, 1994–1998, by Petitioner Campaign Donations 156
  7.2 Three Examples of State Court Organization 162
  8.1 Types of Civil Cases and Their Resolution in the U.S. District Courts, 2002 195
  8.2 Caseload of the U.S. District Courts 196
  8.3 Percentage Liberal Decisions by Party Identification, U.S. District Courts, 1933–1987 202
  8.4 Percentage Liberal Decisions by Region, U.S. District Courts, 1933–1987 203
  9.1 Sources of Appeals in the Circuit Courts, September 2002 221
  9.2 Caseload of the Circuit Courts of Appeals (Cases Filed) 222
  9.3 Types of Cases Terminated in the Courts of Appeals, September 2001–September 2002 223
  9.4a Types of Opinions or Orders Filed, September 2001–September 2002 224
  9.4b Percentage Unpublished Decisions by Circuit, September 2001–September 2002 225
  9.5 Total Case Participations on the Circuit Courts by Judge Type 227
  9.6 Dissensus in the Appeals Courts: Percentage of Cases with Dissenting Votes 236
  9.7 Percentage Liberal Decisions in Criminal Procedure Cases 237
  9.8 Percentage Liberal Decisions in Civil Liberties Cases 237
10.1 Dilbert: Dogbert’s Supreme Court Nomination Hearings 253
10.2 10.2  Proportion Liberal in Civil Liberties during Presidential Regimes 272
10.3 10.3  Liberalism of Outgoing and Incoming Justices, by Presidential Regime 273
11.1 Cases Filed, 1880–2000 282
12.1 Scatterplot of Justices’ Ideology and Voting Liberalism in Criminal Cases 321
12.2 Scatterplot of Justices’ Ideology and Voting Liberalism in All Cases 322
12.3 A Conceptual Model of the Influence of Public Opinion on Supreme Court Decisions 327
13.1 Dyadic Influence Matrix, Rehnquist Court, 1986–2001 Terms 357
14.1 Pretest–Post-test Possibilities 382
14.2 Number of Abortions by Year 387




Tables




  2.1 Hypothetical Choices of Three Legislators among Three Alternatives page 29
  6.1 The Selective Incorporation of Criminal Rights Provisions in the Bill of Rights 121
  6.2 Role of Deliberations in Verdicts 136
  6.3 Judge/Jury Verdict Concordance 136
  6.4 Regression Analysis of Sentencing Decisions in Pennsylvania 138
  7.1 Selection and Retention in the States 150
  7.2 Voting on Confessions by Method of Retention, 1970–1991 159
  7.3 Voting on Confessions by Docket Control, 1970–1991 166
  7.4 Caseload of State Courts, 2001 (in millions) 172
  7.5 Voting on Confessions by Ideology 172
  8.1 Authorized Judgeships in the District Courts 192
  8.2 Types of Criminal Cases and Court Action in the U.S. District Courts, 2002 198
  8.3 U.S. Sentencing Commission Sentencing Table 208
  8.4 Determinants of Sentencing in U.S. District Courts, 2001 (in months) 209
  9.1 Circuit Judgeships 215
  9.2 Circuit Assignments of the Supreme Court Justices Effective September 30, 1994 218
  9.3 Voting in Criminal Cases Sample, 1960–1996 238
  9.4 Voting in Civil Rights Cases Sample, 1960–1996 238
  9.5 Voting in Criminal Cases Accompanied by Dissent Sample, 1960–1996 238
  9.6 Voting in Civil Rights Cases Accompanied by Dissent Sample, 1960–1996 239
  9.7 Voting in Criminal Cases by Gender and Party Sample, 1960–1996 239
  9.8 Voting in Civil Rights Cases by Gender and Party Sample, 1960–1996 240
  9.9 Voting in Criminal Cases by Race and Party Sample, 1960–1996 241
  9.10 Voting in Civil Rights Cases by Race and Party Sample, 1960–1996 242
10.1 Rejected Supreme Court Nominees 254
10.2 Nominee Margin, Vote Status, Ideology, and Qualifications 264
10.3 Confirmation Voting by Nominee Qualifications 266
10.4 Confirmation Voting by Ideological Distance 266
10.5 Confirmation Voting by Qualifications and Distance: Percentage Pro 267
10.6 Confirmation Voting by Presidential Status 267
10.7 Confirmation Voting by Presidential Partisanship 268
10.8 Confirmation Voting by Presidential Approval 268
10.9 Confirmation Voting by Interest Group Opposition 269
11.1 Nonmeritorious Resolution of Orally Argued Cases, 1953–2003 Terms 279
11.2 Case Selection by Issue Area Controlled for Court 284
11.3 Grant Rate Percentage by Desire to Affirm or Reverse in the Burger Court, 1969–1986 286
11.4 Grant Rate Percentage by Winning or Losing on the Merits in the Burger Court, 1969–1986 288
11.5 Effect of Predicted Success on the Merits on Granting Certiorari (gamma coefficients) Contingent on Affirming or Reversing in the Burger Court, 1969–1986 289
11.6 Affirmation and Reversal by Court 290
11.7 Reversal Rate Percentage by Term 291
12.1 The Impact of Precedent versus Preferences on the O’Connor, Kennedy, and Souter Opinion in Casey 312
12.2 Justices’ Precedential Behavior by Case Type 314
12.3 Justices’ Votes on Overturning Precedents 317
12.4 Justices’ Ideology, Liberalism in Criminal Cases, and Liberalism in All Cases, 1953–2003 Terms 320
13.1 Behavioral Options Exercised by the Rehnquist Court Justices, 1986–2003 Terms 336
13.2 Opinion Assignment in the Vinson Court 339
13.3 Opinion Assignment in the Warren Court 339
13.4 Opinion Assignment in the Burger Court 340
13.5 Opinion Assignment in the Rehnquist Court, 1986–1990 Terms 340
13.6 Deviation of Assignments per Assignment Day from Distributional Equality by Term 344
13.7 Cumulative Number of Deviations from the Most Equal Distribution of Assignments per Assignment Day per Justice per Term 347
13.8 Interagreement in Special Opinions, 1986–2001 Terms 352
13.9 Frequency of Special Opinions as a Proportion of Votes Cast 353
13.10 Dyadic Influence Matrix, 1986–2001 Terms 355
14.1 Confessions Upheld in the Courts of Appeals before and after Miranda 372
14.2 Confessions Upheld in the Courts of Appeals during and after the Warren Court 372
14.3 Confessions Upheld in the Courts of Appeals by Partisanship of Panel Majority 373
14.4 Confessions Upheld in the Courts of Appeals by Lower Court Disposition 373




Preface




In planning work subsequent to The Supreme Court and the Attitudinal Model (1993), we determined that the best course would be to update it initially with a focus on game theory and multivariate analyses appropriate for a professional and graduate student readership. The result was The Supreme Court and the Attitudinal Model Revisited, which Cambridge University Press published in 2002. The next step, we decided, was to write a separate (but related) volume, less methodologically oriented, more broadly focused, and thus more suitable for undergraduate classes and a more general, less professional audience. Thus, The Supreme Court in the American Legal System.

   The spotlight of The Supreme Court and the Attitudinal Model Revisited obviously remained on the Supreme Court, to the nearly complete exclusion of other courts. Moreover, as those familiar with the book well know, the book focused extensively on the Supreme Court’s decision on the merits, carefully comparing, theoretically and empirically, legal, attitudinal, and rational choice models. Alternatively, although The Supreme Court in the American Legal System also centers on the Supreme Court, the in of the title deserves emphasis. In this volume, we extensively examine the lower courts, providing separate chapters on state courts, the U.S. District Courts, and the U.S. Courts of Appeals. Needless to say, we pay special attention to the relationship between these courts and the Supreme Court. We also pay extended attention to the legal process, with separate chapters on civil procedure, evidence, and criminal procedure.

   Although we continue to provide original research, we present such research at a level that does not require methodological sophistication. Usually we present our results without multivariate analyses, but only when alternative analyses demonstrate the reliability of the bivariate results. In one instance, that is impossible: We require multivariate regression analysis to test hypotheses about judges’ sentencing decisions, but the results are presented in a readily understandable manner. Furthermore, we provide all data used for our original research, and all commands to run the analyses, on the book’s Web site: http://www.cambridge.org/9780521780384.

The data for this book were gathered from a series of grants separately provided to each of us by the National Science Foundation (NSF). Without the NSF’s support neither this book nor its two predecessors could have been written. Needless to say, we are deeply grateful and indebted to the NSF for its support.

   State University of New York at Stony Brook provided Segal with sabbatical leave toward the end of this project, during which time he was a visiting scholar at the Hauser Global Law School program at New York University School of Law. He thanks both institutions for their support.

   We thank Professor Bradley Canon for comments on Chapter 14. We also thank Scott Graves and Chad Westerland for expert research assistance and Armin Gharagozlou for superb editorial assistance. Susan Thornton expertly imbued the manuscript with the grammatical, syntactical, and stylistic niceties that our prose so often lacks. Helen Wheeler, our production editor, efficiently shepherded the transformation of the manuscript from typescript to book.



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