Patterns of Policy Making Across State Supreme Courts
In recent years, a number of state supreme courts have explicitly declined to follow decisions of the United States Supreme Court. In a 1998 opinion,1 the Supreme Court of Georgia struck down a state law criminalizing sodomy and expressly rejected the Supreme Court’s decision in Bowers v. Hardwick.2 Likewise, several states have rebuffed a major decision of the Court on the free exercise of religion3, while a number of its criminal rights rulings have met with outright defiance from state supreme courts.4 In one particularly egregious example, the Connecticut Supreme Court made clear its displeasure with the standard to be used in search and seizure cases established by the Supreme Court in Illinois v. Gates:5
We eschew the amorphous standard of Gates in passing upon article first, § 7, interpretation and apply the more specific standards of the Aguilar-Spinelli test … The Aguilar-Spinelli test, with its two prongs of “veracity” or “reliability” and “basis of knowledge,” offers a practical and independent test under our constitution that predictably guides the conduct of all concerned, including magistrates and law enforcement officials, in the determination of probable cause.6
This example suggests that lower courts may ignore, resist, or blatantly defy the standards established by the Supreme Court. Consequently, the substantive application of law may vary widely across jurisdictions. Variation across circuits, districts, or states can create uncertainty about the proper application of rules among trial court judges, legal professionals, police, and the public. Defiance or noncompliance with precedent in lower courts may also lead to possible equal protection issues under the Fourteenth Amendment, as individuals in different jurisdictions are subject to different standards of behavior.
The seriousness of this issue stimulates considerable interest in the nature of judicial conflict. How frequently do lower courts deviate? Do they defy these decisions outright or do they engage in more subtle forms of resistance such as accepting the doctrine’s validity but finding reasons not to apply it consistently across cases? What political, institutional, cultural, and legal factors lead to defiant behavior by a lower court?
In order to understand the differences in how state supreme courts apply precedent from the United States Supreme Court, it is first necessary to discuss the institutional structure of the court system. The hierarchical nature of the court system in the United States suggests that lower courts are bound to follow the dictates of those courts above them. The doctrine of stare decisis should provide some authority over the decisions of judges sitting on the same court over time, but it also requires that the decisions of higher courts be binding on those inferior courts in the system (but see Brenner and Spaeth 1995; Segal and Spaeth 1996, 1999, 2002). The question that arises in a system of this kind is whether, and under what conditions, lower courts make decisions that are inconsistent with the precedent of higher courts.
As the highest court in the nation, the Supreme Court makes decisions that are binding on all lower courts, both federal and state. But, unlike Congress and the president, who are able to influence the behavior of agencies through the allocation of funds and personnel changes, the Supreme Court’s ability to “control” lower courts is substantially limited. The primary power available to the Court to enforce its decisions is the ability to review, and overturn, aberrant decisions of lower courts. Compounding the inherent difficulty in using such a blunt instrument to induce compliance among lower courts, the docket of the Supreme Court has shrunk to fewer than 100 cases a year, reducing the likelihood of review of aberrant lower court decisions. When viewed together, this implies that these lower courts may be able to determine legal standards that are the product, not of Supreme Court precedent, but of their own preferences. This is particularly true for state supreme courts.
State supreme courts serve a dual role in interpreting both the United States Constitution as well as their own state constitutions, and taking primary responsibility for reconciling the two. Despite the fact that the Judiciary Act of 1789 gives the Supreme Court the right to review decisions of state supreme courts, justices on those courts do entertain a level of flexibility unknown to judges on the federal courts of appeals. State supreme courts generate, in absolute terms, far more decisions than do courts of appeals, making it more difficult for the Supreme Court to identify rulings that deviate from precedent. And lastly, one of the Supreme Court’s primary responsibilities is to review and maintain consistency among the federal courts, suggesting that they will be more attentive to the product of courts of appeals.7
Explaining State Supreme Court Responses
Although there has been some attention given to the relationship between federal courts of appeals and the Supreme Court (Cameron, Segal, and Songer 2000; Johnson 1979; Songer 1987; Songer, Segal, and Cameron 1994), it is by no means clear how state supreme courts comport with decisions of the Supreme Court.8 This is a glaring shortcoming, given the evolving role of state supreme courts in recent years. Some of the changes are clearly the result of forces internal to the state or institution itself, while others are potentially traceable to the actions of the Supreme Court. State supreme courts have become more professionalized, with increased support staff and other resources to assist in processing cases. Additionally, judicial elections have become more costly and competitive with greater fundraising efforts required by judicial candidates. At the same time, the Supreme Court struck state-level restrictions on campaign speech by judicial candidates, opening the door for candidates to air their views on potentially salient and controversial issues.9
The Court may have further contributed to the autonomy of state supreme courts, particularly in the area of civil liberties, through decisions in a pair of Miranda rights cases, suggesting that if state supreme courts relied on their own precedent, the Supreme Court could not review them.10 While all of these may have contributed to greater independence of state supreme courts, we know little about whether in fact that is the case.
The Role of Precedent
Supporters of the legal model of decision-making assume that judges base their decisions on the facts of the case, using one or more of a number of accepted modes of adjudication, such as original intent, textualism, or precedent. One argument for such an approach is that it is value neutral—the judge does not invest any of her own prejudices or personal beliefs in determining the outcome. Proponents also point out that such an approach provides stability and continuity in the law; if judges are basing their decisions on precedent, they cannot deviate far from accepted and well-settled areas of law in deciding the case before them. Only through repeated decisions over time do we get incremental changes in the law.
This legal approach, long espoused by law professors, is not without some support in the field of judicial politics, at least insofar as one tenet of the legal approach is concerned—the role of case facts. There are numerous examples of empirical research finding that case facts play an important role in cases before the Supreme Court (George and Epstein 1992; Schubert 1965, 1974; Segal 1984; Segal and Spaeth 2002), courts of appeals (Songer and Haire 1992), and state supreme courts (Brace and Hall 1995, 1997; Emmert 1992; Emmert and Traut 1994). Clearly, the specific fact situation plays some role in determining the outcome of cases decided by courts at all levels.
More controversial is the role played by precedent generally. Supporters of the attitudinal approach suggest that precedent is hardly binding and serves only to disguise the unfiltered assertion of judicial preferences through the opinion writing process (see Segal and Spaeth 1996, 1999, 2002). Few would quibble with the idea that precedent is not determinative, dictating specific and clear outcomes based on previous cases. Yet even were we to assume that justices are single-minded seekers of policy, we should not assume that precedent is unimportant (see Epstein and Knight 1998; Knight and Epstein 1996a; Landes and Posner 1976; Spriggs and Hansford 2000, 2001, 2002; Wahlbeck 1997). In part, this is true because precedent guides decision-making in cases with similar fact situations.
More important from our perspective is that precedent can also be seen as a normative constraint on the behavior of judicial decision-makers. For example, Knight and Epstein write that
justices have a preferred rule that they would like to establish in the case before them, but they strategically modify their position to take account of a normative constraint in order to produce a decision as close as is possible to their preferred outcome.
(Epstein and Knight 1996a, 1021)
This suggests that acknowledging and using precedent is important for understanding the decisions of even politically-oriented actors in courts. Equally as important, it implies that we should pay careful attention to how precedent is used and treated by these actors.
The New Judicial Federalism and the Place of States in the Judicial Hierarchy
Though the Supreme Court can at least partly constrain the behavior of lower federal courts, it is not clear that it can have similar success in the states. This is true because the relationship between state courts and the Supreme Court is not strictly hierarchical. That is, not all decisions handed down by the Supreme Court—even in issue areas that overlap with its jurisdiction—are open to Supreme Court review. This means that, in addition to factors that may allow all lower courts to avoid implementing decisions of the Supreme Court, state supreme courts can also rely on their own state constitutions and laws to determine the outcome of cases.
Ironically, the foundation for this independence is based on precedent. The Supreme Court decided in 1875 that it would not accept cases from states for review unless federal law was somehow implicated in the state supreme court’s decision.11 Essentially, this allows states to interpret their own constitutions and statutes free from review by the Supreme Court, unless that interpretation concerns a matter on which the United States Constitution has spoken. Supportive of the independence of state courts, the Supreme Court established, in 1875 in the Murdock case, the “adequate and independent state grounds test” as a guide for lower courts.
The Court’s decision in Murdock and the idea of “adequate and independent state grounds” has taken on a renewed vigor in recent years. Responding to an increasing conservatism on the Supreme Court, Justice Brennan, in a dissenting opinion in Michigan v. Mosley, called on states that wanted to avoid Supreme Court review to rely on their own law and constitutions in reaching liberal decisions in civil liberties cases.12 He would later expand on this reasoning in Mosley, arguing that “decisions of the [Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law … such decisions are not mechanically applicable to state law issues.”13
At first blush, this implies that the impact of Supreme Court precedent on state court decisions should be limited. But this is not necessarily the case. First, Supreme Court precedent can be a useful strategic tool for state judicial actors. Since a large majority of state supreme court justices are not lifetime appointees and are therefore subordinates in local state political hierarchies, they may seek opportunities to use their specialized knowledge of Supreme Court precedent in order to “shirk” locally. The Supreme Court itself has an interest in maintaining its own latitude for reviewing state decisions and using that to affect policy change on a broader scale. For instance, Justice O’Connor, writing for the majority in Michigan v. Long, largely in response to Brennan’s call to the states, argued that the Court would assume that decisions of state supreme courts did not rest on adequate and independent state grounds unless explicitly stated in the opinion.14
Reinforcing the call for a “new judicial federalism” are two types of political factors that encourage state court independence. As noted earlier, the ability of the Supreme Court to monitor and check lower courts is minimal. The sheer number of cases decided in both federal and state lower courts makes it impossible to recognize all instances where precedent is not followed or, even if this is recognized, to alter those decisions. Even more germane for the study of state courts is the fact that they are