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About the Author:
Thomas G. Hansford is assistant professor of political science at the University of California, Merced
About the Author:
James F. Spriggs II is professor of political science at Washington University in St. Louis. He is the coauthor of Crafting Law on the Supreme Court, winner of the American Political Science Association's 2001 C. Herman Pritchett Award for the best book on law and courts
"The authors have done a commendable job in showing how both law and politics matter when the Supreme Court interprets precedent. . . . [Their] uncluttered explanation of the substance of their theory and findings makes The Politics of Precedent accessible to any student of the Supreme Court."—Mark S. Hurwitz, Political Science Quarterly
"There is much to like in this book. The empirical analysis is carefully executed and accessible even to those without training in higher-level statistics.... [This book] will be of interest to scholars of the judiciary, and [it] will be cited regularly and routinely assigned in graduate classes in judicial politics."—Chris W. Bonneau, Perspectives on Politics
AMONGST OTHER PROTECTIONS, the First Amendment to the U.S. Constitution prohibits Congress from interfering with the right of individuals to assemble in a peaceful manner and speak their mind. The Fourteenth Amendment, the U.S. Supreme Court has determined, requires that the states also respect the freedoms of speech and assembly. General constitutional protections, however, inevitably meet sticky factual circumstances in which there may not be a clear constitutional answer. Can a state's trespassing laws, for example, be used to restrict protest activities on property that is private but generally open to the public? Or, is this sort of activity protected by the First and Fourteenth Amendments?
This question was essentially the one presented to the U.S. Supreme Court in the case Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. (1968). After union members began picketing a nonunionized supermarket located in a Pennsylvania shopping center, a court granted an injunction prohibiting any union picketing on the grounds of the shopping center. The U.S. Supreme Court held that since the shopping center is generally open and accessible to the public,the First and Fourteenth Amendments prevent Pennsylvania's trespass laws being used to prohibit a peaceful demonstration or picket. Despite the shopping center being private property, the Court concluded that Pennsylvania could not stop the picketers as long as the exercise of their First Amendment rights did not interfere with the ability of others to access the property.
Supreme Court decisions do not just resolve immediate, narrow disputes; they also set broader precedent. The Logan Valley Plaza case was no exception, as it established that states, in general, could not restrict speech and assembly on private property if the property is open to the public. Four years after the Court decided Logan Valley Plaza, it revisited the precedent when deciding two new cases dealing with protest activity on private, commercial property. In these two decisions, the Court determined that the Logan Valley Plaza precedent does not apply to a situation in which the private property in question is a stand-alone store (Central Hardware Co. v. National Labor Relations Board ) or when the protest activity is unrelated to the private property (Lloyd Corporation v. Tanner ). As evidenced by the lower court rulings preceding the Supreme Court's decisions in these cases, it was possible to read the Logan Valley Plaza precedent as protecting the rights of the protesters in both situations. Nevertheless, the Court opted to limit the meaning and applicability of Logan Valley Plaza in a significant way and thus restrict the reach of the First and Fourteenth Amendments. In fact, the Supreme Court's interpretation of Logan Valley Plaza in the Lloyd Corp. decision was so critical that in a subsequent decision, Hudgens v. National Labor Relations Board (1976), the Court noted that Lloyd may have implicitly overruled Logan Valley Plaza (424 U.S. 507, 517-18).
The lesson to be drawn from Logan Valley Plaza is that Supreme Court precedents do not necessarily remain static over time. Instead, the meaning and scope of a precedent can change as the Supreme Court revisits and interprets it in future cases. Why and when will the U.S. Supreme Court alter the meaning of one of its precedents by negatively interpreting it, as the Court did with Logan Valley Plaza? Conversely, when will the Court interpret a precedent positively? By negative interpretation, we mean instances in which the Court chooses to restrict a precedent's reach or call into question its continuing legal validity. Positive interpretation occurs when the Court expressly relies on a case as part of the justification for the outcome of a dispute. This book is not about protest activity and the First and Fourteenth Amendments; it is about one important aspect of legal change at the Supreme Court-the interpretation of Court precedent. We seek to explain when and why the Court develops law through the interpretation of its precedent.
MAKING LAW AND POLICY AT THE U.S. SUPREME COURT
A Supreme Court decision contains two commonly recognized policy outcomes. First, there is the disposition in the case, which determines which litigant prevails in the legal dispute. Second, there is the legal principle announced by the Court that consists of the holding-the answer to the question raised in the case-and the legal reasoning that justifies the holding. The disposition obviously has direct implications for the litigants' immediate interests in a case. The legal reasoning, however, can have more far-reaching consequences by altering the existing state of legal policy and thus helping to structure the outcomes of future disputes.
Specialists in judicial politics overwhelmingly agree that the essence of the Court's policy-making power resides in its majority opinions (e.g., Epstein and Knight 1998; Epstein and Kobylka 1992; Maltzman, Spriggs, and Wahlbeck 2000, 5-6; Rohde and Spaeth 1976, 172; Segal and Spaeth 2002, 357). These opinions articulate legal principles and, in effect, public policies that affect the behavior of both governmental and nongovernmental decision makers. Court opinions have such effects because they provide information about the possible outcomes of future disputes and signal sanctions for noncompliance (see Spriggs 1996; Wahlbeck 1997). In particular, these legal principles allow decision makers to forecast likely answers to legal questions and thus infer the consequences of their choices (Douglas  1979; Landes and Posner 1976; Powell 1990). As with policies or institutional rules more generally, Court opinions help actors to overcome uncertainty in their decision-making processes. Put simply, Court opinions create precedents that are relevant for future disputes and thus shape the behavior of forward-thinking actors.
The political science literature, however, manifests a significant disconnect between this common understanding of the importance of law and the state of knowledge regarding how law develops. What is most striking is the paucity of systematic theoretical or empirical studies that treat the law as a variable to be explained. Indeed, only a handful of studies directly seek to explain legal development at the Court, and even they provide somewhat inconsistent and potentially contradictory answers.
Epstein and Kobylka (1992), for example, argue that the most significant variable affecting change in abortion and death penalty policy was the legal arguments put forward by organized interests in the cases, rather than the policy goals of the justices or the surrounding political climate. The overruling of precedent, one study concluded, is largely due to ideological considerations (Brenner and Spaeth 1995). McGuire and MacKuen (2001) suggest the Court's decision to follow a precedent also depends heavily on ideological considerations. And, in his examination of change in search and seizure policy at the Court, Wahlbeck (1997) discovers that ideological considerations matter, but finds some support for the influence of precedent.
Even recent research focusing on the choices the justices make while crafting opinions does not directly address how law develops. Most notable are studies regarding the assigning of majority opinions (Brenner 1982; Maltzman and Wahlbeck 1996), bargaining and negotiation among the justices (Epstein and Knight 1998; Maltzman, Spriggs, and Wahlbeck 2000), and the justices' joining of opinion coalitions (Brenner and Spaeth 1988; Epstein and Knight 1998; Maltzman, Spriggs, and Wahlbeck 2000; Wahlbeck, Spriggs, and Maltzman 1999). In their recent book, Crafting Law on the Supreme Court, Maltzman, Spriggs, and Wahlbeck (2000, 154), for instance, conclude by saying: "Although we present a theoretical and empirical case for the factors that shape judicial behavior, it is important to note that we have not made the final step, explaining the actual content of Court opinions. That task we leave to the future." Indeed, this is a task that nearly all scholars of judicial politics have left for future study.
One reason for the dearth of research treating the law as a dependent variable has been the near-hegemonic status of the attitudinal model of Supreme Court decision making. The arguments underlying this model-namely, that the justices' votes are exclusively a result of their ideological leanings-have led researchers to study the ideological nature of the individual votes of Supreme Court justices or the dispositions of cases, rather than the policy content of majority opinions. Researchers working in this tradition generally argue that the language in Court opinions constitutes post hoc justifications for the outcome preferred by the justices. Thus, they recommend that scholars study "what justices do [i.e., their votes]" rather than "what they say [i.e., their opinions]" (Spaeth 1965, 879). Although attitudinalists recognize that the "opinion of the Court ... constitutes the core of the Court's policy-making process" (Segal and Spaeth 2002, 357), there continues to be an overwhelming tendency to study the justices' votes.
The second reason that there has been little systematic research in which development of the law is the dependent variable is that it is a difficult concept to measure. For this reason, most research aimed at understanding legal change actually uses the ideological direction of case outcomes as the dependent variable (e.g., Baum 1988; George and Epstein 1992; Segal 1985).
As a result, while existing studies offer tremendous insight into how justices vote on case dispositions, the literature continues to present an underdeveloped theoretical and empirical understanding of why and when law changes. This situation persists in spite of recognition that "analyses of courts ought to center on the law that is established by judicial decisions" (Knight and Epstein 1996, 1021). The goal of this book is to take up this charge and contribute to our understanding of legal change at the U.S. Supreme Court.
Quite obviously, the law is a complex and multifaceted phenomenon that includes a wide variety of components. Epstein and Kobylka (1992, 5) point out this complexity when writing, "The phenomenon of legal change is hydra-headed, comprehending formal judicial actions, executive and legislative behavior, and the behavior of relevant publics. As a result, the concept is subject to definition and observation from a wide variety of perspectives." Even when limiting the concept of law to formal judicial actions, it encompasses the Court's interpretation of federal statutes and treaties, the U.S. Constitution, and the rules announced in previous Court opinions.
As elaborated below, we carve out one element of the law on which to focus-the Court's interpretation of the precedents set by its prior opinions. Given the importance of the Court's precedents as referents for behavior, and the fact that their meaning and scope can change over time, we think they are a good place to begin to analyze how law develops. Our central objective is to provide a systematic theoretical and empirical analysis of the Court's decisions about when and how to interpret existing Court precedents. With this book, we hope to shed light on the Court's most important task, the shaping of legal policy.
THE DEVELOPMENT OF LAW AND THE INTERPRETATION OF PRECEDENT
Political scientists, legal scholars, and practicing lawyers commonly recognize that precedent is one of the central components of the American legal system. By precedent, we mean the legal doctrines, principles, or rules established by prior court opinions. These legal principles indicate the relevance or importance of different factual characteristics for a dispute and set forth legal consequences or tests that attach to particular sets of these factual circumstances (Aldisert 1990; Richards and Kritzer 2002; Schauer 1987). In so doing, precedents convey information that allows decision makers to predict (within certain bounds) the likely legal consequences of different choices and infer the possible range of outcomes of potential disputes.
Importantly, the exact nature of the legal rule established by a Supreme Court opinion can change over time (Epstein and Kobylka 1992; Levi 1949; Wahlbeck 1997). The Court rarely defines doctrine in a comprehensive or complete manner in any one opinion. It sometimes takes a series of opinions to clarify a rule, fill in important details, and define its scope or breadth (Ginsburg 1995, 2124; Landes and Posner 1976, 250). When Court opinions legally treat or interpret an existing precedent they shape it by restricting or broadening its applicability. Legal rules or precedents can thus evolve as the Court interprets them over time.
Broadly speaking, the Court's legal interpretation of precedent takes two forms; and it is these two forms of interpretation on which this book will primarily focus. First, the Court can interpret a precedent positively by relying on it as legal authority (Aldisert 1990; Baum 2001, 142; Freed 1996; Johnson 1985, 1986; McGuire and MacKuen 2001). When doing so, for example, the Court can follow the precedent by indicating that it is controlling or determinative for a dispute. The positive interpretation of precedent thus involves the Court's explicit reliance on the case for at least part of its justification for the outcome in the dispute before it. This treatment of precedent can invigorate its legal authority and possibly expand its scope.
Second, the Court can negatively interpret a precedent by restricting its reach or calling into question its continuing importance. The Court can, for example, distinguish a precedent by finding it inapplicable to a new factual situation, limit a case by restating the legal rule in a narrower fashion, or even overrule a case and declare that it is no longer binding law (see Baum 2001, 142; Gerhardt 1991, 98-109; Johnson 1985, 1986; Maltz 1988, 382-88; Murphy and Pritchett 1979, 491-95). With this kind of interpretation, the Court expresses some level of disagreement with the precedent and, as a result, may undercut the legal authority of a precedent and diminish its applicability to other legal disputes.
The case with which this chapter began, Logan Valley Plaza, provides a clear example of a precedent that the Court negatively interpreted. For an illustration of both positive and negative interpretations of Court precedent, in a very different subject area, consider Warren Trading Post v. Arizona Tax Commission (1965), where the Court overturned an Arizona statute that taxed a retail trading business operated on an Indian reservation but owned by a non-Indian. The Court ruled that federal law regarding trading on Indian reservations was "all-inclusive" and designed to ensure that "no burden shall be imposed upon Indian traders for trading with Indians on reservations" except as authorized by Congress (380 U.S. 685, 691). The Court argued that the state's tax on gross income in this case would result in such a burden by creating financial hardships for those taxed that would "disturb and disarrange" the federal regulatory scheme (380 U.S. 685, 691). The Court therefore concluded that the state tax was preempted by federal legislation.
The Court has on several occasions interpreted or treated this precedent in the context of deciding other disputes. For instance, in White Mountain Apache Tribe v. Bracker (1980), the Court scrutinized Arizona's decision to apply license and tax regulations to non-Indian corporations doing business on an Indian reservation. In holding that federal law preempted Arizona's actions, the Court expressly anchored its decision on Warren Trading Post: "Both the reasoning and result in this case follow naturally from our unanimous decision in Warren Trading Post" (448 U.S. 136, 152). This positive interpretation of Warren Trading Post therefore serves to reinforce its ruling. In fact, in their dissenting opinion, Justices Stevens, Stewart, and Rehnquist disagreed with what they saw as an inappropriate extension of this precedent, calling it "disturbing" (448 U.S. 136, 159).
By contrast, in Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation (1976), the Court declared that Warren Trading Post did not apply to the question of whether a state could require an Indian trader to collect taxes on items sold to non-Indians. The Indian Tribe argued that Warren Trading Post was controlling and led to the conclusion that the taxation scheme at issue intruded on their "freedom from state taxation" (425 U.S. 463, 482). The Court, however, read the precedent more narrowly than the Tribes, saying that because the two taxation schemes differed in substantial ways, Warren Trading Post "does not apply" (425 U.S. 463, 482). The Court's distinguishing of Warren Trading Post therefore represents a negative interpretation of the precedent.
Excerpted from The Politics of Precedent on the U.S. Supreme Court by Thomas G. Hansford James F. Spriggs, II Copyright © 2006 by Princeton University Press. Excerpted by permission.
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|Ch. 2||Explaining the interpretation of precedent||16|
|Ch. 3||Measuring the interpretation of precedent||43|
|Ch. 4||The interpretation of precedent over time||55|
|Ch. 5||The overruling of precedent||78|
|Ch. 6||The interpretation of precedent in majority opinions||93|
|Ch. 7||Lower federal court responses to the Supreme Court's interpretation of precedent||109|
|Ch. 8||Concluding remarks and broader implications||124|