issue definition and policy making on the united states supreme court

ISSUE DEFINITION AND POLICY MAKING ON THE UNITED STATES

SUPREME COURT

Barbara Palmer Southern Methodist University

Although scholars of the Supreme Court 5 agenda have provided a great deal of insight into the process of case selection, relatively little is known about how the Court selects issues within a case. Most models ofjudicial decision making assume that the issues presented by the litigants are fmed. This analysis suggests, however. that in over 20% of all cases, justices actually create new issues. When the Court engages in this issue creation, occasionally the justices are addressing jurisdictional issues or are substituting a narrower claim. More ofien than not, however. the Court provides a response that is much broader that what the parties asked. Amicus brie@ were expected to be a major source of these new issues, but the data show little to no evidence that justices respond to new issues raised by amici. The primary source of these new issues appears to be the justices themselves.

“...the definition ofalternatives is the supreme instrument ofpower.”

E. E. Schattschneider (1 960)

R o b e r t Dahl has been credited with the recognition of the Supreme Court as an institution that plays an active role in policy making. Building upon the logic of the legal realists in the 1930s, Dahl argued that

the Court cannot act strictly as a legal institution. It must ... choose among controversial alternatives of public policy by appealing to some criteria of acceptability on questions of fact and value that cannot be found in or deduced from precedent, statute, and Consti- tution. It is in this sense that the Court is a national policy maker (1957,281).

Textbook assessments of policy making typically identi6 the process as a series of discrete steps, including agenda setting, formulation, implementation, and evaluation (see for example Jones 1984). John Kingdon, for

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example, identifies four stages in the process: “( 1 ) the setting ofthe agenda, (2) the specification of alternatives from which a choice is to be made, (3) an authoritative choice among those specified alternatives ...( 4) the implementation of the decision” (1995, 2). It could be argued that the judicial system, with its highly structured procedures for processing cases, actually comes closer to this step-by-step version of policy making than the realities of legislative politics, and judicial scholars have explored the role of the Supreme Court at various points in the policy making process, from agenda setting to implementation (Franklin and Kosaki 1989; Horowitz 1977; Johnson and Canon 1984; Rosenberg 1991 ; Wasby 1970). Unfortunately, step 2, the specification of alternatives, has been consistently ignored. Models of Supreme Court decision making largely assume that the issues presented by the parties are fixed-that the justices respond to the legal questions as they are presented by the litigants.

Those who study the policy process in the executive and legislative arenas have shown that issue selection and definition have important implications for agenda setting and policy making. Once an issue over- comes the hurdle of even making it onto the political agenda, it can be redefined at numerous points in the policy making process (Baumgartner and Jones 1993; Kingdon 1995; Rochefort and Cobb 1993; Weiss 1989). Granted, the translation of a particular conflict into a legal question involves highly specialized and structured language, but even in a legal context, there can be a great deal of choice regarding how the issues in a case are going to be defined at numerous stages in the judicial system (Mather and Yngvesson 1980; Richardson and Vines 1970; Wasby 1970). Even studies of lower federal and state courts have shown how issues are often redefined, sometimes quite dramatically, as cases make their way through the appellate court system. For example, in a sample of 650 civil liberties cases from the federal courts of appeals, only 2 17 had involved civil liberties issues in the litigation in the district courts (Richardson and Vines 1970). Moreover, lower court judges themselves have indicated that altering the issues presented by litigants is within their discretion (Marvel1 1978).

Supreme Court justices have virtually complete discretion over which cases they select. Each year, the justices and their clerks must sort through thousands of petitions for review, or “certiorari,” to select those few they feel are worthy of the Supreme Court’s time. There are, however, various factors that can make a case stand out and get the justices’ attention, such as conflict between the circuit courts (Perry 1991 ; Ulmer 1984), the participation of the solicitor general (Caplan 1987; Salokar 1992; Tannenhaus et al. 1963), and the presence of amicus briefs (Caldiera and Wright 1988). Case selection is obviously central to the process of agenda setting on the

Policy Making on the Supreme Court 701

Court, and scholars of judicial process have explored the transformation of the Court’s agenda over the past 50 years and the shift in focus from economic issues to civil rights and liberties issues (Pacelle 1991). Rela- tively little is known, however, about how the justices transform the issues within a particular case.

How often does this issue redefinition occur at the Supreme Court? When the justices stray from the legal questions formally presented by the parties, how are those issues redefined? What kinds of issues is the Court creating on its own? A sample of 200 cases from each of the Warren, Burger, and Rehnquist Courts suggests that issue creation occurs with some frequency, in more than 20% of cases in the sample. When the Court creates new issues, much of the time the Court is addressing jurisdictional issues that the parties did not raise, or is even substituting narrower claims. More often than not, however, the Court provided a response that was much broader than what the parties had asked. Surprisingly, amicus briefs, despite their tremendous numbers, were not a significant source of these new issues. There was only direct evidence in one case out of the entire sample of 600 cases that the Court responded to an issue that had been raised in an amicus brief, and the Court ended up ruling against that amici. These findings seem to challenge much of the conventional wisdom regarding the impact of amicus briefs. At any rate, issue definition is clearly an important, and overlooked, component of policy making at the Supreme Court.’

THE SUPREME COURT AND ISSUE CREATION Issue creation is defined as the extent to which the Supreme Court, in

making decisions on the merits, provides authoritative answers to legal questions that were not asked by the parties; in other words, the justices have responded to something other than what was formally briefed and argued. One ofthe most familiar examples ofthis is Mapp v. Ohio (1961). In their briefs on the merits to the Supreme Court, the attorneys for Mapp argued that a state obscenity statue violated the First, Fourth, Eighth, and Fourteenth Amendments.’ Rather than focusing on these challenges to the state law, however, the Supreme Court used the case to extend the exclu- sionary rule to the states, holding that “all evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court” (1961, 643). The Court overturned Worfv. Colorado (1949), which had allowed states more discretion in conducting criminal searches. Interestingly enough, Mapp’s attorneys had never even cited Wolfin their briefs. Regardless, the Court substituted a new issue in place ofthose raised by the parties, and even used this new issue to overturn a previous decision.

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Granted, there is evidence that justices are reluctant to stray from the issues presented by the parties. The Court’s Rules state that, “[o]nly the questions set forth in the petition or fairly included therein will be considered by the Court” (Stem et al. 1993, 893). Justice Brandeis’ Ashwander Rules further expand upon this, explaining that the Court “will not antici- pate a question of constitutional law in advance of the necessity of deciding it ...[ and] will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” (Ashwunder v. Tennessee Valley Authority 1936, 346). From a legal standpoint, this is a very practical approach to resolving a case. As Justice O’Connor explains, “Prudence ... dictates awaiting a case in which the issue was fully litigated below, so that we will have the benefit of developed arguments on both sides and lower court opinions squarely addressing the issue” (Yee v. Escondido 1992, 538). Appellate judges rely a great deal on the adversary system to provide them with the most substantial issues in a case, with attorneys weeding out those that are irrelevant. “Percolation” on an issue in the lower courts provides the benefit of alternative analysis by other judges and legal scholars in law reviews, and thus contributes to the quality of doctrinal development (Marvel1 1978). Simply as a practical matter, justices have incentive to stick to the issues as they were defined by the litigants; it reduces their workload and contributes to the most efficient use of their limited resources, namely time. Moreover, by going beyond the issues presented by the parties, some argue that the Court seriously erodes its credibility and legitimacy among the legal community (Krimbel 1989). Others argue that it is simply unfair. Interviews with attorneys indicated that many of them did not like the practice: “There is nothing worse than a lawyer being beaten by an assumption that simply ... wasn’t raised” (Mar- vell 1978, 122). Attorneys who had lost on the basis of a new issue were very angry, even suggesting they and their clients had been “screwed” (Marvel1 1978, 125).

Responding to the issues as they are presented by the litigants is largely how the justices would be expected to behave. The Supreme Court is a legal institution, and by constitutional design, must wait for cases to come to it after they have been litigated in the lower courts. Even ifjustices seek to translate their policy preferences into law, they are limited to selecting from the cases that are appealed to the Court and may have to “bide their time,” waiting for the “perfect” case (Krimbel 1989). Justice Powell has even suggested that, “[wle owe somewhat less deference to a decision that was rendered without benefit of a full airing of all the relevant considera- tions” (Monell v. New York City Department of Social Services 1978,709). Thus, cases in which the Court created new issues may be viewed as having


less precedential value. Perhaps most significant is that, “[llitigant control of the issues is important to satisfy not only the parties, but society as well” (Krimbel 1989, 943). The Supreme Court is, after all, a counter-majori- tarian institution. When engaging in issue creation, “justices ... act consid- erably more like legislators ... and less like jurists” (Epstein, Segal, and Johnson 1996, 845). One lower court judge even likened the practice of going beyond the issues formally briefed and argued by the litigants to “playing God” (Marvell 1978, 122).

On the other hand, the Supreme Court itself has articulated instances when it would be appropriate to deviate from issues as they were defined by the parties. In fact, Brandeis’ own Ashwander Rules actually describe situations in which the Court might alter the issues presented in a case: “The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. ... When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided” (Ashwander v. Tennessee Valley Authority 1936,347). In other words, in the name of “restraint,” even when the litigants have formally presented and fully briefed a constitutional issue, whenever possible the Court will seek to substitute narrower, statutory grounds or develop a saving statutory interpretation, rather than base the decision on the constitutional grounds.

In other instances, irrespective of the Court’s Rules or Ashwander: the Court has clearly gone beyond what the parties have formally presented, broadening the issues under consideration or even developing completely new issues. As Justice Blackmun explains, “It is unusual, but hardly unheard of, for this Court to decide significant legal questions on which the parties have not joined issue” (McKoy v. North Carolina 1990,461). In fact, it may be the “reactive” nature of the Court that fosters a willingness to stray from the issues formally raised. “Case by case adjudication can be a slow and an imperfect vehicle when developing the law, and judges may wish to cure quickly what they see as problems with the present law” (Marvell 1978, 125). Furthermore, there is evidence that the Court does not see these cases as having less precedential value. In fact, Justice Rehnquist has argued that “parties must be able to rely upon explicitly stated holdings of this Court without being obliged to peruse the briefs of the litigants .... To cast doubt upon each of our cases, from Marbury v. Madison ... forward, in which the explicit ground of decision ‘was never actually briefed or argued’ ... would introduce intolerable uncertainty into

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the law” (Monell v. New York City Department of Social Services 1978, 7 1 7).

All of this suggests that the members of the Court, at their own discretion, may choose to develop their own issues, as alternatives to those that have been formally presented by the litigants. Moreover, issue creation can take a variety of forms; the Court may respond with a much narrower ruling, a much broader ruling, or even provide different grounds for the decision. Consequently, the “question(s) to which the Court will respond in any given case cannot be known with certainty until the Court’s opinion in the case is announced” (Ulmer 1982,322).

There are, however, very few systematic analyses of how the Supreme Court selects the issues it ultimately resolves once a case has been granted review. Sidney Ulmer (1982) was the first to offer a conceptual and theoretical foundation for understandgng the selection of issues within a particular case by the Supreme Court. His work, however, was largely qualitative, using specific cases as examples. In fact, his primary purpose was to define and “establish the significance” of issue selection, rather than conduct empirical testing and provide explanations for its occurrence (1 982, 321). Another study conducted on the 1988 term (McGuire and Palmer 1995) found that the Court went beyond what the parties had presented 1 1% of the time. This analysis suggested that this issue creation was largely discretionary; not only were justices more likely to create new issues in cases involving constitutional issues or civil rights and liberties claims, but they were also likely to create new issues when cases came to the Court under its certiorari jurisdiction, in cases that were affirmed, and in cases with large majority coalitions.

If nothing else, all of this suggests that issue creation occurs at measur- able rates, but still relatively little is known about the content of these new issues. Using random samples of200 cases from each ofthe Warren, Burger and Rehnquist Courts, this analysis expands the scope of the preliminary studies and provides a much more comprehensive look at the frequency of issue creation and the substantive nature of these new issues. How often does issue creation occur more generally? When the Court does go beyond the issues presented by the litigants, what kinds of issues are developed? Are narrower issues being substituted for constitutional claims? Or, when the Court does engage in this kind of decision making behavior, is it more likely to develop broad rules or provide alternative constitutional grounds that go well beyond what the parties had asked?


A BROADER LOOK AT THE FREQUENCY OF ISSUE CREATION

This analysis measures issue creation by comparing the “Questions Presented” by the parties in their briefs on the merits against the issues outlined in the “syllabus,” or official summary, of the Court’s opinion provided in the US. Reports. In coding, a judgment was made regarding whether a majority opinion provided an authoritative ruling on one or more issues that were not presented in the merits briefs of either the petitioner or respondent. In other words, did the Court, as a matter of law, provide more or something other than what was expected based on the Question Presented by the litigants? Coding was done conservatively, finding creation present only where reasonably obvious from a fair reading of the briefs and the ~yllabus.~ Similar measures have been used by judicial scholars investigat- ing related research questions (see for example Spriggs and Wahlbeck 1997). Moreover, this is a relatively reliable measure of issue fluidity. Using summaries of the attorney’s arguments and the Court’s opinion actually reduces the likelihood of disagreement between coders4 Perusing all of the briefs on the merits to determine whether an issue was properly presented, and then scrutinizing the entire written opinion to discern whether an issue was properly addressed, tremendously increases the likelihood of error. Consequently, measuring issue fluidity by comparing the Questions Presented to the syllabus has advantages that make it an acceptable measure.

In order to assess how often issue creation occurs, data for a sample of 200 cases decided by full opinion from each of the Warren (1953-1969), Burger ( 1969- 1 986), and Rehnquist Courts ( 1986- 1992) were collected, for a total of 600 cases.5 As Table 1 shows, issue creation occurred in over one-fifth of all cases. Evidently, the justices have felt free to respond to issues other than those presented by the litigants in a good number of cases. Moreover, the occurrence of issue creation has remained relatively stable across the three judicial eras. A difference of means test indicated that the

Table 1

Frequency of Issue Expansion

Warren-Court Burger Court khnquist Court Io!t- - _. - -~~ ~-

Percent 24% 23% I 8% 21% # of cases 47 46 35 128

n=200 n=200 n=200 n=600

n=number of cases

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rates of issue creation during the Warren, Burger, and Rehnquist Courts were not statistically different from each other. This suggests that issue creation, like other forms of judicial activism, is probably not associated with a particular ideological disposition. The liberal Warren Court went beyond the issues presented by the parties in just as many cases as the conservative Rehnquist Court. Even during the Burger Court, a period of ideological transition, justices were still able to round up majority support for opinions that addressed new issues not raised by the litigants.

An assessment of individual justices also suggests that members of the bench from both ends of the ideological spectrum are willing to engage in issue creation. In fact, almost every justice that has served since Chief Justice Warren’s appointment has gone beyond the questions presented in at least one of their majority opinions.6 In addition, justices from both ends of the ideological spectrum have openly scolded their colleagues for reach- ing out and deciding issues not briefed and argued by the litigants in one case, but then are quite willing to engage in issue creation themselves in the next. For example, in Stunley v. Illinois (1972), Chief Justice Burger, a moderately conservative justice, based his dissent on the fact that the majority had engaged in issue creation. When Joan Stanley died, her husband lost custody of their three children under a state statute that declared children of unwed fathers wards of the state, without a hearing or proof of neglect. The Illinois state supreme court’s opinion, the parties’ brief, and the oral arguments all dealt with whether or not the state law violated the Equal Protection clause. The Supreme Court’s decision, however, held that, “Under the Due Process Clause of the Fourteenth Amend- ment, petitioner was entitled to a hearing on his fitness as a parent before his children were taken from him” (Stanley v. Illinois 1972, 645). Chief Justice Burger argued that:

All of those persons in Illinois who may have followed the progress of this case will, I expect, experience no little surprise at the Court’s opinion handed down today. Stanley will undoubtedly be surprised to find that he has prevailed on an issue never advanced by him. The judges who dealt with this case in the state courts will be greatly surprised to find their decisions overturned on a ground they never considered (1 972,622).

In fact, the Chief Justice devoted most of his dissenting opinion to pointing out that the majority opinion was based on arguments “that are nowhere to be found in the record” ( 1972,66 1 ).

Chief Justice Burger’s words, however, seem to come back to haunt him several years later. He was actually chastised by Justice Marshall, one of the most liberal justices in the Court’s modern history, in United Stutes v.


Sharpe (1985). After following a car and a truck with a camper-trailer, a DEA agent attempted to make an “investigative stop.” The car pulled over, but the truck did not. The DEA agent radioed the state highway patrol, who eventually pulled over the truck. The state patrol officer questioned the driver and detained him for over 15 minutes until the DEA agent arrived. The Questions Presented had to do with whether a person “reasonably suspected of criminal activity” could be detained “for the period ... reasonably necessary to pursue a circumscribed investigation.”’ In an opinion by the Chief Justice, the Court held that the “detention ... clearly met the Fourth Amendment’s standard of reasonableness” (United States v. Sharpe 1985, 675). Justice Marshall stated that he could not join the majority opinion because, in addition to addressing the issues briefed and argued by the United States, the majority also had reopened the factual question of whether a “reasonable suspicion of criminal activity existed to justify these stops” in the first place (1985,700). Justice Marshall argued that:

This question was not presented in the certiorari petition and not a single word is devoted to it in the briefs ....[ O]ne would only hope the Court would act with greater restraint than to speculate whether the “assumption” of reasonable suspicion is “abundantly” sup- ported by the record. But any such hope would evidently be merely idle fancy with respect to a Court so anxious to address an unpre- sented issue that it blithely hurdles over the jurisdictional and juris- prudential principles that ought to stand in its way .... Consistency, however, hardly has been a hallmark of the current Court’s Fourth Amendment campaigns ( 1 985,700).

Marshall refused to join the majority opinion, although he agreed with the outcome, because the Court had “reache[d] out to decide a wholly distinct issue not presented” (1 985, 700).

At any rate, all of this is to suggest that issue creation does occur with some frequency. Over 20% of the time, the Court responded to issues other than those the parties presented. In addition, since Chief Justice Warren’s appointment, almost every single justice that has served on the bench has engaged in this kind of decision making behavior. Justices from all ends of the ideological spectrum have written majority opinions that have gone beyond the issue formally briefed and argued by the litigants.

THE SUBSTANTIVE NATURE OF THE NEW ISSUES But what kinds of issues are being created? How often does the Court

follow AshwanderS: rules and substitute a narrower statutory claim for constitutional issues? How often does the Court develop broad rules or even provide alternative constitutional grounds? In order to explore these

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questions, each of the new issues created by the Court was put in five categories. In the vast majority of cases, only one new issue was created, but in eight cases, two new issues were created, and in two cases, three new issues were created, for a total of 127 new issues.8

The first category includes those new issues that were the result of case consolidation. Occasionally, several cases that raise similar issues will come to the Court simultaneously. Sometimes, based on the recommenda- tion of the Clerk ofthe Court, the justices will consider these cases together and consolidate them. The issues that these cases share, however, are likely to be a subset of the larger total number of questions raised in all the cases. In the resolution of consolidated cases, by responding to the questions presented in one of the cases, parties in the companion cases may receive answers to questions they did not necessarily ask. In other words, issue creation can occur when one case “rides along’’ with another. This ac- counted for 15, or about 12%, of all the new issues. But because these new issues are not an indicator of any form ofjudicial activism, or restraintism for that matter, they are not included in the rest of the issue type discussion, leaving 1 12 issues for analysis.

The second category includes issues ofjurisdiction, standing, and moot- ness. Regardless of whether the parties have raised these kinds of issues, the Court has the prerogative to discuss these “threshold” questions when the justices see it as necessary (see Gutierrez v. Waterman Steamship Co. 1963,209). In an 1884 decision, the Court explained:

the first and fundamental question is that ofjurisdiction, first, ofthis court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it (Mi and LMRailway Co. v. Swan 1884,382).

This long established practice of raising jurisdiction issues, however, can be traced all the way back to an 1804 case, Capron v. Van Noorden. Consequently, a good many of the new issues addressed by the Court are expected to fall into this category.

The remaining three categories are an attempt to assess the scope of the new issues the Court addressed. New issues were classified as “narrower” than the questions presented, as a “rephrasing” of the questions presented, or as “broader” than the questions presented. Narrower issues include those that involve an Ashwander-type substitution-cases in which constitutional claims were avoided by substituting a statutory claim or by adopting a saving statutory construction. In addition, issues in this category would also involve a narrower application of the decision, in which the justices


specifically apply the ruling to the facts of the particular case even though the parties had framed the issues more generally.

Issues classified as “broader” would involve the articulation of broad rules that clearly go beyond the circumstances of the particular case, the kinds of cases that the Warren Court was renowned for. But this category also includes instances when the Court provides additional grounds for its decision; in other words, new constitutional or statutory provisions are offered as a basis for deciding the case. For example, in Dallas v. Sfunglin (1 988) the parties challenged a city ordinance that authorized the licensing of a particular class of dance halls that would be open to teenagers between the ages of 14 and 18 only. The owner of a roller-rink challenged the ordinance as a violation of the First Amendment freedom of association. The Court upheld the ordinance as consistent with the First Amendment, explaining that “the Constitution does not recognize a generalized right of ‘social association’ that includes chance encounters in dance halls” (1 988, 19). The majority, however, did not stop there. They also ruled that the ordinance did “not violate the Equal Protection Clause because there is a rational relationship between the age restriction for ... dance halls and the city’s interest in promoting the welfareofteenagers .... While the city permits teenagers and adults to rollerskate together, skating involves less physical contact than dancing, a differentiation that need not be striking to survive rational-basis scrutiny” (1988, 19). Thus, while responding to the First Amendment claims, the Court also provided additional constitutional grounds for the decision, grounds that the parties had not raised in their briefs. Thus, the Court can create a “broader” decision not just by articulating a series of rules or guidelines for future litigation, but also by providing additional grounds for the decision.

Cases involving a rephrasing of the issues, of course, fall somewhere between the categories of narrower and broader. For coding purposes, “rephrasing” involves cases in which the Court does not provide additional statutory or constitutional grounds for the decision, but looks at the questions presented in an alternative way-that is, adifferent test is applied other than the one suggested by the litigants, or the burden of proof is shifted to another party. For example, Kelley v. Johnson ( 1 976) involved a challenge to a county regulation restricting the length that police could grow their hair. The parties raised two questions involving the burden on the state tojustify its actions, and whether the police department “constituted a para-military organization” for the purposes of the Fourteenth Amendment.’ The Court, while holding that the county regulation did not violate the police officer’s Fourteenth Amendment rights, explained that, “the question is not whether the State can ‘establish’ a ‘genuine public need’ for the specific regulation,

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but whether the respondent can demonstrate that there is no rational con- nection between the regulation ... and the promotion of safety of persons and property” (1976, 238). The majority then ruled that the regulation was “sufficiently rational” (1976, 238). Thus, the Court, while still basing its decision on the Fourteenth Amendment, redefined one of the issues raised by the parties. Basically, this category includes issues that are decided on the same statutory or constitutional grounds stated in the Questions Pre- sented by the parties, but are still clearly different from the Questions Presented.

Contrary to expectations, as Table 2 shows, jurisdictional issues made up only 12% of all the new issues created by the Court. There appears, however, to be some potentially interesting differences between judicial eras in this category. Nineteen percent of the new issues developed by the Burger Court were jurisdictional, compared to a mere 8% by the Warren Court and 6% by the Rehnquist Court. One explanation for this may be the changes that took place during the Burger Court, chipping away the “relatively open access” that had been created by the Warren Court (Rathjen and Spaeth 1979,36 1 ). In the wake of decisions such as Baker v. Carr ( 1962) and Flast v. Cohen (1 968), the Burger Court began restricting definitions

Table 2

Kinds of Issues Expanded

~- Warren Court Burger Court Rehnquist Court Total

Jurisdictional Issues 8% 19% 6% 12% (3) (8) (2) (13)

Narrower

Rephrased

Broader

New constitutional 3 5% 42% 20% 32% grounds (6) ( 5 ) (3) (14)

guidelines (9) (2) (8) (19) New rules or 53% 17% 53% 43%

n=39 n=42 n=3 I n=l12

n=number of issues


of standing and jurisdiction in cases such as Linda R. S. v. Richard D. (1973) and United States v. Richardson (1 974). Consequently, this increase in the number of jurisdictional issues being raised may have been a reflection of the shift in the Court's policy position in this area. At any rate, at least for the Warren and Rehnquist Courts, jurisdictional issues made up a relatively small proportion of the new issues the Court created.

The Court responded to narrower issues than the parties posed 18% of the time." Surprisingly, it was the Warren Court that responded the most often with narrower issues. In fact, the Warren Court substituted a narrower claim than the parties argued almost twice as often as the Rehnquist Court. Almost a quarter of the new issues created by the Warren Court were narrower. Most of the time, regardless of the judicial era, the Court narrowed the decision by restricting its ruling to the particular facts presented in the case. Within this class of issues, the Court substituted statutory claims for constitutional issues only one-fourth of the time. More generally, out of the 112 new issues, only five were instances in which the Court applied Brandeis' Ashwander Rules. Consequently, regardless of how much importance is given to this judicial practice, it does not appear that the Court applies these Rules very often. About one-third ofthe time, when the Court engaged in issue creation, it rephrased the issues presented by the parties." It appears that the Burger Court was the most likely to develop these kinds of issues.

It is issues in the final category that the Court created the most often. Almost 40% of the new issues the Court developed were broader than those presented by the parties.I2 There is, however, some rather dramatic vari- ation between judicial eras. Only 29% of the new issues created by the Burger Court were broader, compared to 44% and 48% by the Warren and Rehnquist Courts respectively. In addition, the form of this kind of issue creation during the Burger Court also appears to be different. When the Burger Court developed issues that were broader, it was more likely to do so by providing additional constitutional grounds for the decision. In only a few instances did the Burger Court articulate new rules and guidelines that went beyond the circumstances of a particular case. The Warren and Rehnquist Courts, however, were far more likely to announce these kinds of expansive rules and guidelines than provide alternative constitutional grounds for the decision.

Historical analyses of the Warren Court have tacitly recognized the phenomenon of issue creation as an integral component ofthe jurisprudence unique to that era (see Funston 1977; O'Brien 1996; Schwartz 1983, 1993; Tushnet 1993; Wasby 1976). Scholars have pointed out how decisions like Miranda v. Arizona ( 1966) and Gideon v. Wainwright (1 963) contributed to


the Warren Court’s reputation for articulating rules that went well beyond the particular circumstances of individual cases. In addition, the Warren Court handed down decisions that dealt with broad challenges to newly recognized civil rights and liberties, such as Brown v. Board of Education ( 1954). So is the Warren Court’s reputation for this kind of issue redefinition warranted? When the Warren Court engaged in issue creation, it took this form almost one-fourth of the time. More generally, this suggests that in about 8.5% of all cases, the Warren Court engaged in this kind of decision making behavior. On the other hand, it appears that the Rehnquist Court has a similar penchant for articulating broad rules. In addition, it is important to keep in mind that, relative to the otherjudicial eras, the Warren Court was more likely to substitute narrower claims than those posed by the parties. And the overall rates of issue creation were essentially the same for all three judicial eras.

SOURCES OF NEW ISSUES If it is clear that the justices do respond to issues other than those raised

by the litigants, where do these new issues come from? One possible source is amicus briefs. The number of groups participating in Supreme Court litigation has skyrocketed in the last 30 years, particularly through the filing ofamicus briefs at both the agenda stage and merit stage of decision making (Caldiera and Wright 1988; Epstein 1993; O’Connor 1980; Schlozman and Tierney 1986). The Court itself has even encouraged interest group use of the judiciary, and justices have cited amici in their written opinions (O’Con- nor and Epstein 1983). Amici provide the Court with alternative ways of looking at a case and provide information on the social consequences of deciding one way or the other. In fact, “[ilt frequently happens that a party wants a particular argument made but is not in a position to make that argument itself,” (Ennis 1984,606) and, as a result, parties may coordinate their efforts with interest groups acting as amici (see Behuniak-Long 1991). In addition, given the special status of the solicitor general’s office, expe- rienced attorneys will often ask the solicitor general to submit an amicus brief on their behalf (Caplan 1987; McGuire 1993; Salokar 1992). The solicitor general’s office submits amicus briefs, many times at the invitation of the Court, in about 40% of all cases. Given all this, it would seem that amicus briefs might be the source of many of the new issues the Court chose to address.

As Table 3 shows, the sample of 600 cases included over 1500 amicus briefs. Even during the Warren Court, while it was true that amici did not participate at the rates that they do today, by the early 1960s it was quite uncommon for a case not to have one or more amicus briefs accompanying


Table 3

Amicus Briefs as a Source of New Issues

__ ~~~~~~~ Warren . Burger .. RehnquiSt.-_ . Total

Total Number of Amicus Briefs 201 505 829 1535

Number of Cases with Amicus 76 147 166 3 89

Number of Amicus Briefs rais- 5 38 18 61

in sample

Briefs in sample (38%) (74%) (83%) (65%)

ing unique issues (2%) (8%) (2%) (4%)

Number of cases with unique 4 37 14 5 5 issues from Amici (2%) ( 1 go/) (7%) (9%)

by Amici Briefs

“adopted” by the Court

issues presented by amici

Number of unique issues raised 7 57 19 83

Number of unique issues 0 2 3 5

Number of cases citing unique 0 0 1 I

n-number of cases

it. There were over 200 amicus briefs in the Warren Court sample. During the Burger Court, the number of cases with amicus briefs more than doubled; almost three-quarters of all the cases had at least one amicus brief. By the late 1 9 8 0 ~ ~ almost every case had at least one amicus brief, with most cases having three or four briefs accompanying it.

Yet, only 61, a mere 4%, of all these briefs even raised unique issues. The vast majority of amici merely repeated the issues that had been raised by the parties.I3 There is some evidence however, that during the Burger Court, new issues presented by amicus briefs in two cases in the sample may have been adopted. More specifically, in both ofthese cases, the Court may have responded to issues that had been presented by the United States acting as amicus curiae. In California v. Green (1970), the parties questioned the constitutionality of state codes of evidence making inconsistent statements by a witness prior to trial admissible, provided the witness was subject to cross-examination at the trial.I4 In addition to holding that these codes of evidence were constitutional, the Court went on to hold that they would be constitutional even ifthe witness was not fully cross-examined at the trial, an issue that had been raised by the United States.15 The second case, Williumson Planning Commission v. Hamilton Bunk ( 1985), involved

714 Southeastern Political Review VoL 27 No. 4

a dispute over changes in a county zoning ordinance. In 1973, a county in Tennessee had approved the respondent’s residential housing development plans. In 1977, the county reduced the allowable density level for housing, and two years later, decided that these reductions applied to the development that still remained. The parties raised several Fifth Amendment issues regarding a jury award to the respondent for $350,000 as just compensation for the temporary “taking” of the developer’s expected profit due to the change in the zoning ordinance.16 Instead of responding to the parties’ constitutional questions, the Court instead “examine[d]” the procedural posture of the [the] respondent’s claim” (Williamson 1985, 1 76). The majority opinion held that, regardless of any Fifth Amendment require- ments of just compensation, the bank’s claim was “not ripe,” because the “[rlespondent has not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature” (Williamson 1985, 173). Neither of the parties were concerned with these procedural questions. The amicus brief submitted by the United States, however, had specifically raised these issues.”

It is hard to assess, however, exactly how the United States may have influenced the development of either of the Court’s decisions. In both of these cases, in addition to submitting amicus briefs, the Court had also requested that the solicitor general participate in oral arguments. There is, however, no direct evidence in either of the final opinions that indicates what role the solicitor general played in determining which issues the Court chose to resolve. Neither opinion specifically references the amicus briefs submitted by the United States or its participation in oral arguments. In both of these cases, however, the United States clearly presented alternative issues, and significant parts of the amicus briefs were devoted to them. Consequently, it is conceivable that the solicitor general did play some part in determining the new issues the Court decided.

In three cases from the Rehnquist Court sample, there is also some evidence that the Court may have adopted unique issues that had been raised by amici. Hewitt v. Helms (1987) involved a prisoner who had been sentenced by prison officials to six months of disciplinary confinement for his involvement in a riot. The only evidence presented at the hearing were statements made by aconfidential informant. The prisoner filed suit against the prison officials for violating his due process rights, but was released on parole before the district court acted. Ultimately, the district court and court of appeals ruled against the prisoner, but in the meantime, the state changed its regulations regarding the use of confidential sources in prison hearings. The question raised by the parties was whether the prisoner was entitled to attorney’s fees, even though he was never a prevailing party.I8 The Supreme


Court ruled that the prisoner was not eligible for attorney’s fees, but then went on to consider the “catalyst theory;” in other words, if “respondent’s suit prompted the [state] to amend its regulations,” had the prisoner become, in effect, a “prevailing party?” (Hewitf v. Helms 1987,756). This issue had been raised in the Brief of the National Governors’ Association, et aI.I9

In Georgia v. McCoNum (1992), the parties asked whether the Four- teenth Amendment prohibited a white criminal defendant from exercising peremptory jury strikes in a racially discriminatory manner.20 The Georgia Supreme court had ruled no, distinguishing McCollum’s case from Edmon- son v. Leesville Concrete Co. (1991), which had involved a civil suit. In reversing, the Supreme Court responded to the issue presented by the parties, holding that the Equal Protection Clause did prohibit “purposehl discrimination on the ground of race in the exercise of peremptory challenges” (Georgia v. McColIum 1992,42). In addition, the Court also held that this prohibition “does not violate a criminal defendant’s constitutional rights ... to a fair trial .... Nor does the prohibition violate the Sixth Amend- ment right to effective assistance of counsel ...[ or the] right to a trial by a jury that is impartial” (1992, 43). These issues regarding the criminal’s constitutional rights had been presented in an amicus brief submitted by Charles J. Hynes, the District Attorney from Kings County, New York.2’

But once again, it should be noted that the Supreme Court did not cite the amicus briefs from the National Governors’ Association or Mr. Hynes anywhere in either of these opinions. Consequently, it is difficult to speculate about the role of the amici in convincing the Court to address these additional issues. But in the remaining case, Argentine Republic v. Amerudu Hess Shipping Corp. (1 988), there is actually some evidence that the Court may have been influenced by an amicus brief to consider a new issue. The parties presented four questions, all revolving around whether a U.S. federal court had jurisdiction over a foreign country after an Ameri- can cargo ship had been damaged in an attack during the Falkland Islands War.22 Responding to the issues raised by the parties, the Court held that the Foreign Sovereign Immunities Act of 1976 “provides the sole basis for obtaining jurisdiction over a foreign state in United States courts” (Argen- tine Republic 1988, 428-430), and several international agreements, such as the Geneva Convention on the High Seas, the Pan American Maritime Neutrality Convention, did not create exceptions to the Act. The Court went on to hold that the Treaty of Friendship, Commerce and Navigation between the United States and Liberia also did not create an exception to the Act. This was an issue, however, that had actually been raised in an amicus brief submitted by the Republic of Liberia. In the majority opinion, the Court does specifically cite the Republic of Liberia’s brief, suggesting that this


amici did play a role in issue creation in this case. It should be noted, however, that the majority opinion devoted only three sentences to this issue, and did not even rule in favor of the amici.

Despite the profusion of interest groups participating in Supreme Court litigation as amici, it appears that they contribute very little in terms of new issues that the Court will adopt. Admittedly, the development ofalternative issues is a significant undertaking, quite different from the purpose of providing information regarding the social impact of the decision, so perhaps this is a rather high standard to hold amici. But in this analysis of over 1500 amicus briefs, direct evidence that the Court addressed issues presented by amici was found in one case, and in that case, the Court ruled against the amici. In four other cases, there appear to be correlations between issues presented in amicus briefs and issues resolved by the Court. In other words, in less than 1% of all cases granted full review is there a chance that an interest group, acting as an amici, convinced the Court to address an issue that was not presented by the parties. Amici are the possible source for only four of the 1 12 new issues in this analysis, or about 3.5%. Thus, it appears that amicus briefs, including those submitted by the solicitor general, are not a primary source of the new issues the Court chooses to address. The vast majority ofthe time, interest groups are merely repeating the issues presented by the parties.

CONCLUSIONS Despite the Court’s Rules, the need for “percolation,” the implications

for the adversary system, and even perceived threats to the Court’s legitimacy, this analysis suggests that issue creation is a decision making phenomenon that occurs on the Supreme Court with some frequency. An assessment ofthe Warren, Burger, and Rehnquist Courts shows that in about 20% of all cases, the litigants received answers to questions they did not ask; in a good number of cases, the justices created new issues beyond those raised by the parties, and the rates of this issue creation have remained relatively constant across these judicial eras. Very few justices have never engaged in issue creation. When writing a majority opinion, justices are perfectly willing to go beyond what the parties have asked. Moreover, when the Court addresses new issues, they typically were not issues ofjurisdiction or attempts to follow the “cardinal principles” articulated in Ashwander. In fact, in only five cases in the entire sample, or less than 1 YO, did the Court avoid constitutional issues by adopting narrower statutory grounds or a saving statutory construction. Almost three-quarters, 70%, of the new issues the Court addressed were instances in which the Court rephrased the Questions Presented, or developed issues that were much broader than those

~ ~ ~ ~~~

P o z y Making on the Supreme Court 71 7

suggested by the parties. Furthermore, it does not appear that other portions of the written record of the case, like amicus briefs, including those submitted by the solicitor general, are important sources ofthese new issues. In fact, all of this evidence suggests that the predominant source of new issues is the justices themselves. In other words, problem definition in this policy making institution is at the complete discretion of the bench. There is nothing predetermined about the definition of issues, even at the Supreme Court. The redefinition of issues is fundamental to the policy making process in the legislative, executive and judicial branches.

NOTES ‘This work is an extension of previous research, co-authored with Kevin

McGuire (1995). A preliminary assessment of the 1988 term found that issue creation occurred in 1 1 % of the cases. These findings, however, were not without some “controversy.” Epstein, Segal, and Johnson (1 996) argued that these results were merely an artifact of the way the data was collected. They attempted to show that all of the issues we claimed were created by the Court could be found in the briefs of the attorneys. Their coding methods, however, could not be replicated (McGuire and Palmer 1996). For example, in some cases, the justices raised the new issue of jurisdiction. As “evidence” that this issue had appeared in the body of the attorney’s briefs, they used the one-sentence standard statement that all attorneys must provide at the beginning of their briefs that is provided for the Clerk’s Ofice. See, for example, Duquesne Light Co. v. Burusch (1989). Moreover, in one-third of the cases we coded as issue creation, additional confirmation was found in the Court’s opinions; one or more justices specifically noted in a majority or concurring opinion that an issue not raised by the parties was being addressed. Thus, not only is Epstein, Segal, and Johnson’s criticism flawed, but the justices themselves acknow- ledge that issue creation occurs in a good many cases.

2Brief of Appellant on the Merits, pp. 4-6.

‘This presumes that the Questions Presented provide an accurate statement of the issues presented by the litigants. There is evidence that the Questions Presented do play a pivotal role in the initial screening of cases for review. “How to” books for attorneys on writing appellate briefs often devote considerable attention to framing clear and succinct issues in the Questions Presented (Aldisert 1992; Re and Re 1991; Stern et al. 1993). The Questions Presented are the first part of the petition for review the law clerks and justices read, and given the demands of getting through the docket, they are often the only part of the petition they read (Baker 1984;


Caldiera and Wright 1990). Thus, it seems reasonable to expect that the Questions Presented provide an accurate list of the issues in the case. In using this measure, it is also assumed that the syllabus provides an accurate statement of the issues resolved by the Court. Syllabi are written from early releases of the opinions by the Reporter of Decisions and his assistant, who act on behalf of the Court. Technically, the syllabus is not part of the Court’s opinion, but is provided as a convenience. Syllabi are, however, sent to the justices’ chambers and are not released without their approval (phone interview with Daniel Long, Assistant to the Reporter, September 13,1995). Consequently, although some caution must be observed, the syllabus does provide an accurate list ofthe issues resolved by the Court with areasonable amount of certainty. If anything, the coding of the cases probably represents an underestimate of issue fluidity.

4This coding method was developed for the analysis of the 1988 term and subjected to a formal test of reliability. A graduate student unfamiliar with the research was recruited to code a randomly drawn sample of 20% of the cases. The agreement between coders was very high (97%), with a kappa of .88, indicating “almost perfect agreement” between coders (Elder, Pavalko, and Clipp 1993).

5More specifically, docket numbers were used as the unit of analysis in order to account for the consolidation of cases, which will be discussed more later.

61n the samples, the only justices that did not engage in issue creation at least once were Reed, Frankfurter, Jackson, Minton, and Fortas.

’Brief for the United States, p. 1.

6For clarification, the term “cases” here again refers to docket numbers. Occasionally, in consolidated cases, the Court created a new issue that had not been asked by any ofthe litigants in any ofthe individual cases; in other words, the issue was new to all of the companion cases. This new issue, however, was counted only once, and not once for each docket number, in order not to inflate the number of new issues. To test the reliability of this coding scheme, another graduate student, also unfamiliar with this work, was recruited to recode a randomly drawn sample of 20% of these issues. The agreement between coders was 84%, with a kappa of .80, indicating “almost perfect agreement” (Elder, Pavalko, and Clipp 1993).

9Petitioner’s Brief, p. 2; Respondent’s Brief, p. 1.

’OSpecifically, this category included 20 issues, but only five different substantive types. They were: cases with Ashwander substitutions, cases

Policy Making on the Supreme Court 71 9

in which the Court redefined the case as a question of fact and remanded it to the lower court, cases in which the Court simply remanded a particular question, cases in which the Court specifically stated that it would apply its ruling only to the particular circumstances of the case, and a few cases in which the Court said it would not rule on an issue that had not been raised.

“This category included 35 issues, with a wider variety of substantive types. The most common examples were the adoption of a different test than the parties had indicated, shifting the burden of proof, recommenda- tions regarding appropriate relief, and retroactive applicability.

I2This category included 44 issues, but only four different substantive types. They were: the articulation of new roles and guidelines (which the Court was usually explicit about recognizing that that was what it was doing), additional constitutional grounds, additional statutory grounds, and in one case, an additional foreign treaty.

I3See Spriggs and Wahlbeck (1997). Perhaps this is indicative of why the Court recently added new language regarding the participation of amici in the latest revision of its Rules. Rule 37 actually chastises amici who “burden” the Court by filing briefs that do not bring “relevant matter to the attention of the Court that has not already been brought to its attention by the parties” (Stem et al. 1993, 193). Whether this rule change discourages amici from filing briefs that merely duplicate the parties’ briefs remains to be seen.

I4Petitioner’s Opening Brief, pp. 2-3; Brief for Respondent, p. 2.

ISBrief for the United States as Amicus Curiae, p. 2, Question 2.

I6Brief for the Petitioners, p. i; Brief for Respondent Hamilton Bank of

”Brief for the United States as Amicus Curiae Supporting Petitioners,

‘*Brief for Petitioners, p. i.

I9Question 2, p. i .

20Petitioner’s Brief on the Merits, p. i; Brief for Respondent, p. i.

21Amicus Curiae Brief for Charles J. Hynes, District Attorney, Kings

22Brief for the Petitioner, p. i; Brief for the Respondents, p. i.

Johnson City, p. i.

p. i.

County, New York, in Support of the Petitioner, p. ii.


LEGAL CASES Argentine Republic v. Amerada Hess Shipping Corp. 1988. 488 U.S. 428.

Ashwander v. Tennessee Valley Authority. 1936. 297 U . S . 288.

Buker v. Carr. 1962. 369 U.S. 186.

Brown v. Board of Education. 1954. 345 U . S . 972.

California v. Green. 1970. 399 U.S . 149.

Capron v. Van Noorden. 1804. 2 Cranch 126.

Dallas v. Stanglin. 1988. 490 U.S . 19.

Duquesne Light Co. v. Barasch. 1989. 488 U.S . 299.

Edmonson v. Leesville Concrete Co. 199 1. 500 U.S. 6 14.

Flust v. Cohen. 1968. 392 U.S. 83.

Georgia v. McCoNum. 1992. 505 U.S. 42.

Gideon v. Wainwright. 1963. 372 U.S. 335.

Gutierrez v. Waterman Steamship Co. 1 963. 3 73 U .S. 206.

Hewitt v. Helms. 1987. 482 U.S . 755.

KeNey v. Johnson. 1976. 425 U.S. 238.

Linda R. S. v. Richard D. 1973. 41 0 U.S. 6 14.

Mapp v. Ohio. 1961. 367 U.S. 643.

MC und LMRailway Co. v. Swan. 1884. 1 1 1 U.S. 379.

McKoy v. North Curolinu. 1990. 494 U.S. 433.

Miranda v. Arizona. 1966. 384 U.S. 436. Monell v. New York City Department of Social Services. 1978. 436 U.S . 658.

Stanley v. Illinois. 1972. 405 U.S . 645.

UnitedStates v. Richardson. 1974. 418 U . S . 166.

UnitedStates v. Sharpe. 1985. 470 U.S. 675. Williamson Planning Commission v. Hamilton Bank. 1985. 473 U.S. 172.

Wol f . Colorado. 1949. 338 U.S. 25.

Yee v. Escondido. 1992. 503 U.S. 519.


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