The Supreme Court and Legal Change

Abortion and the Death Penalty

Lee Epstein, Joseph F. Kobylka

• Publisher: The University of North Carolina Press
• Year: 2000
• ISBN:
  9780807861295
• Topic: Law
• Subtopic: Legal History
• Index: Law

The authors analyze abortion and death penalty decisions by the Supreme Court and argue that they provide prime examples of abrupt legal change. After proposing that the strength of legal arguments has at least as much impact on Court decisions as do public opinion and justices' political beliefs, they focus on the way litigators propel certain issues onto the Court's agenda and seek to persuade the justices to affect legal change.

Chapter One: Introduction

[W]e want to know what principles you would apply, what philosophies you would employ as you exercise the awesome, and I emphasize awesome, power you will hold if you are confirmed as a Justice, an Associate Justice, to the Supreme Court of the United States.—Senator Joseph R. Biden, Jr., Opening Statement, Senate Judiciary Committee hearings on the nomination of Judge David Souter to the U.S. Supreme Court, 13 September 1990

Hyperbole? Perhaps. But surely, over the past half century or so, it is incontestable that the U.S. Supreme Court has spoken authoritatively on an increasing number of significant issues of public policy and, in the opinion of many, has entered decisively the political fray once largely reserved for the elected branches of government. Its decisions on school prayer, reapportionment, racial discrimination, abortion, and the like have generated a great deal of substantive debate and set political agendas for years to come. They also have raised anew questions about its institutional function. Should the Court be directing public policy on the most salient issues of the day? Why don’t legislatures, which presumably are closer to the citizenry, perform this function? In short, why do we, as Americans, allow what is purported to be an essentially legal body to assert itself as a political one?

Addressing these questions is a challenging task well beyond the scope of our inquiry. What we are concerned with is why such questions arise in the first place. Why is it that citizens, political actors, and legal scholars so often call into question the institutional powers of the Court? We suspect the answer to this is embedded in the tension that exists between Americans’ vision of the proper role of the judiciary in society and its actual function, a “tension” that is not at all new. Indeed, it may be the case that many, in the 1990s, envision the ideal role of the Court in much the same terms as did the founders of our nation in the 1780s. Yet, the Court never has fully met that expectation.

The framers of the Constitution took great pains in creating and empowering the U.S. Supreme Court. They desired it to be a significant part of the new system and thus bestowed it with potential jurisdiction over a wide range of disputes.¹ Still, many proponents of a robust judiciary argued that the Court required the power of judicial review—the “duty” to “declare all acts contrary to the manifest tenor of the Constitution void” (Federalist Papers, no. 78)—to be a coequal branch of the national government.² To give effect to this duty, the Court would need to be far different in character than the other institutions; if tied to the same constituencies as the other branches, it might be hesitant to strike down the improper acts of Congress and the president.

The constitutional solution to this puzzle is found in the unique selection and retention system of the federal judiciary: presidential nomination, Senate confirmation, and life tenure.³ By releasing judges from the control of the electorate, the framers felt they had accomplished the all-important end: the judiciary’s constituency was now very different from that of the other institutions of the government. Congress and the president would reflect the popular will, responding to the ebb and flow of ordinary politics. The Court, on the other hand, would confine its attention to the law. It would stand above the political fray and enforce the law free from overt political forces and influence. It would be a force for legal stability; politics would be neither its guide nor measure. It would decide cases brought to it according to the law: the Constitution, statutes, and precedent. Navigating by these stars, the justices would enforce the limitations on governmental power and “guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves” (Federalist Papers, no. 78).

Thus, at least according to the author of essay number 78 of the Federalist Papers, Alexander Hamilton, the constitutional authority of the Court stems largely from its peculiar function as a governmental branch removed from common political pressures—the Court was to “declare the sense of the law” through “inflexible and uniform adherence to the rights of the constitution and of individuals” (Federalist Papers, no. 78). Independent of political influence, the law—as decided and announced by the Court—would be relatively fixed and stable over time. It also would accommodate majoritarian preferences within constitutional limitations.

Herein, though, lies the tension: however ingenious this plan, it no longer fully describes the operation of the courts. A long line of scholarship demonstrates that political influences are now abundantly present in the judiciary, and that the effect of this politicization has touched virtually all aspects of the Court. Studies of judicial decision making (Schubert 1965, 1974; Rohde and Spaeth 1976) have shown that judges frequently act as if their political attitudes dominate their decisions, leading them to stray occasionally from rigid adherence to the law. Students of the courts also have demonstrated that the political environment—encompassing factors such as party control of the government, public opinion, and political setting (Cook 1973, 1977; Marshall 1989)—is at least sometimes associated with judicial outcomes. We also know that interest groups and other political actors regularly try to influence its decisions, often with substantial success (Cortner 1968; Vose 1959). Clearly, the judiciary is different from the other departments of the national government, but its history and opinions show that it is not as different as Madison and Hamilton suggested: political forces and influences do seep into its decisions, especially when it considers politically sensitive topics.

The results of this politicization are many, but surely among the most significant is the susceptibility of judicially framed “law” to profound change and even reversal. If the Court and its members are not free from overt political forces and influences, then how can they be the stabilizing force the framers envisioned? It is this concept of legal change that we suspect Americans find so troubling. If they perceive the Court in terms similar to those of our founders, then questions undoubtedly arise: Why are abortion rights expansive at one point but subject to severe restrictions at another? Why is capital punishment permitted in 1992 when it was held to be unconstitutional in 1972? Other examples—such as the Court’s vacillation on the rights of the criminally accused—are similarly easy to summon. In short, the question is why the Court’s treatment of some issues frequently takes on the appearance of a roller-coaster ride when its design purports to remove such bumps and loops from its track?

This is an important question, the answer to which probably lies, in some sense, in the increasingly political nature of the Court and its environment. But in what facet of that politicization? The most obvious answer is that of personnel changes and the concomitant attitudinal alterations they often occasion. Such an effect has been manifest since the earliest period of the Republic when, in the dying days of his administration—the last Federalist administration America was to see—President John Adams installed his secretary of state, John Marshall, as chief justice of the Supreme Court. Through the Court, Marshall kept the Federalist agenda alive for over thirty years. To no one’s real surprise, when finally afforded the opportunity to replace Marshall, President Jackson chose his erstwhile supporter, Roger Taney, and the Court shifted its interpretative direction away from Marshall’s determined nationalism.

The more recent controversy surrounding the retirement of Justice Lewis Powell and his proposed replacement with Judge Robert Bork also was, in part, a result of the aspirations and fears about legal change harbored by many of the Supreme Court’s constituencies. Some elements had hoped that this personnel change would propel a rightward judicial drift that originated in the winds blowing out of the Nixon White House. Others feared that this drift would curtail or reverse law developed by the Burger Court as well as that which traced its lineage to earlier judicial times. The debate over Bork’s nomination—and, to a lesser degree, that of David Souter and Clarence Thomas—was a conversation between these various constituencies about the likelihood and legitimacy of judicially crafted legal change.

In a sense, these debates assumed their conclusions: changes in Court personnel yield changes in constitutional interpretation. This, of course, can happen. Franklin Roosevelt finalized his victory over Court-based opponents of his New Deal when he replaced the “Conservative Four Horsemen” with justices committed to his vision of federal-state relations (Jackson 1941). Richard Nixon had similar success in matters of criminal law when he appointed four new justices to the Court during his first term as president (Levy 1974). This said, however, it is important to note that the Court does not always chart new and immediately predictable directions as the result of the appointment process. Nixon did not get the legal answers he wanted on the questions of abortion and executive privilege, for example. Neither did President Reagan completely redraw the legal map by elevating his choices to the Supreme Court. Yet legal change, prompted from the bench of the Supreme Court, did occur during their presidencies—some of it not to their liking. Such change cannot, at least in total, be attributed to personnel changes.

What this suggests is that shifts in the composition of the Supreme Court, though they can bring about legal change, do not necessarily produce it. Even so, students of the courts have tended to fix on personnel changes as the explanatory factor accounting for judicially driven doctrinal change. This conclusion is a natural outgrowth of research guided by behavioral assumptions and conceptualization: much of what has been written on the courts in the recent past has fixed on the behavior of individual justices and judges, who, it is assumed, act as ideologically motivated goal maximizers. In some cases, they are; but in others, their decisions seem to be influenced by factors other than personal ideological preferences.

Insofar as this is the case, change in legal doctrine can result from the interplay of a broad range of factors. Although it may result from personnel changes, it also can be understood, for example, as the product of evolving doctrine, the climate of the times in which cases are decided, the issues thrust upon the Court, and the configuration of actors framing arguments and pressing claims through the courts. Thus, to understand the dynamics of legal change, it is necessary to contemplate the variety of legal and political forces at work, to identify the relationship of these factors to the emerging law articulated by the Supreme Court, and to examine their operation over an extended period of time in settings where we can most readily identify and assess their impact.

ANALYZING LEGAL CHANGE: A RESEARCH STRATEGY

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. It could be profitably viewed as an alteration in grass-roots legal and political activities, customs, and attitudes, and studied accordingly. Such an approach would take account of formal governmental institutions but would concentrate primarily on noninstitutional relationships and activities. An alternative, and the one that we have chosen to employ, defines legal change as a Court-created shift in (or a reversal of) a particular prevailing legal doctrine. This approach emphasizes the importance of processes and constitutional doctrine in setting the parameters of subsequent political and policy choices.

Although these different approaches to legal change vary in their animating perspectives, according to the questions they ask and the data they assess, both seek to come to grips with the forces that make up the complex matrix of law-governed relationships constituting the American polity. Our approach does not deny the utility of other, more sociological frameworks; they tell us much about important linkages between law and society. Rather, for purposes of analytical clarity and depth, and because we think that “law” as articulated by the Supreme Court sets the general legal and political context for the resolution of any given contentious issue, we confine our study to an assessment of three factors that work to promote or retard doctrinal shifts in the decisions of the Supreme Court: the Court itself, the political environment, and the organized pressure groups lobbying the Court.

A variety of strategies exist to study the role these factors play in promoting legal change. We have decided to invoke a comparative case-study approach. This design, like all case studies, has its inherent flaws; for example, some may argue that it does not permit the development of the sort of systematic generalizations that often accompany statistical or formal modeling. What it does allow, however, is an in-depth analysis of the legal, contextual, and environmental factors contributing to interpretational dynamism. As such, this design will permit us to generate hypotheses, which in turn facilitate the development of richer explanations for the process of legal change.

Moreover, the case-study approach we employ differs from those undertaken in the past. Rather than focusing exclusively on one legal area, we selected two groupings of cases for comparative analysis. In each grouping, the initial case established a clear doctrinal change or innovation; the later case(s) represented a doctrinal and decisional shift away from the earlier holding. In this way, the Court created within each specific issue area two distinct, temporally spaced sets of legal change. The subjects we consider are the Court’s treatment of death penalty and abortion litigation:

CAPITAL PUNISHMENT	ABORTION
Furman v. Georgia (1972)	Roe v. Wade (1973)
Gregg v. Georgia (1976)	Webster v. Reproductive Health Services (1989)
McCleskey v. Kemp (1987)

We based our selection of these cases on a number of considerations. We thought it important, for example, to examine two areas of the law that raised different legal issues (albeit equally salient and controversial ones) to overcome some of the inherent limitations of the case-study approach in developing generalizable propositions. The cases we chose for inclusion, thus, tap a spectrum of issues, arguments, and constitutional provisions, from criminal law and procedure through doctrines of privacy and liberty.

Yet, as we detail in appendixes 1 and 2, the cases contained in the two groupings are remarkably similar on several dimensions. For one, the cases in each group presented virtually identical questions to the Court. Furman, Gregg, and McCleskey all raised queries about Georgia’s procedures for implementing the death penalty; Roe and Webster treated the constitutional status of the abortion choice. As we shall describe in the next chapter, they also generated a great deal of interest among organized pressure groups and other institutional actors; they were, in short, highly salient cases. Because of this, we will be able to assess the respective roles of the political environment and of legal actors as catalysts of the doctrinal changes that occurred in these areas.

More important, however, is that both case groupings are characterized by the judicial adoption of a clear policy stance followed by a sudden shift in legal result. Consider Furman and Gregg. Throughout our nation’s history, the death penalty was a legitimate form of punishment. Suddenly, in 1972, the Court struck down as unconstitutional the procedure used by most states for imposing capital punishment; but, four years later (in Gregg) it reasserted the constitutionality of the death penalty, upholding a newly devised schema for its execution. Roe and Webster also represent stark alterations in legal policy. Since the 1860s, many states had proscribed abortion except when necessary to save the life of the mother. Then, in 1973, the Court shocked the country when it ruled that abortions performed during the first trimester of pregnancy were not subject to state regulation and that those before viability could be restricted only in ways reasonably related to the mother’s health. Two decades later, in Webster, the Court gave the states substantially more leeway for constraining the right to choose an abortion. This decision cut severely into the basic underpinnings of the Roe decision, effectively undermining the “fundamental right” articulated only sixteen years before.

In both instances, one set of interests “won” their cases at time A only to see this victory, in part o...

Table of contents

• Cover Page
• The Supreme Court and Legal Change: Abortion and the Death Penalty
• Copyright Page
• Dedication
• Contents
• Tables and Figures
• Preface
• Chapter One: Introduction
• Chapter Two: The Agents of Legal Change
• Chapter Three: Capital Punishment I: The Road to Furman
• Chapter Four: Capital Punishment II: From Furman to Mccleskey
• Chapter Five: Abortion I: The Road to Roe
• Chapter Six: Abortion II: From Roe to Webster
• Chapter Seven: The Life of the Law: Understanding The Dynamics of Legal Change
• Appendix 1
• Appendix 2
• Notes
• Table of Cases
• References
• Index