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Huntingdon College Political Science and Public Affairs Program.

PSC 314: Political theory and Constitutional Law.
Suggestions on Researching the Supreme Court
From Dr. Bradley Best, an expert, and former student.
Compiled by Dr. Jeremy LewisMail Icon
Revised 6 March 2002; click Reload or Refresh for latest version.

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The following excellent advice was supplied to a senior capstone student interested in contrasting the Rehnquist with the Warren Courts.  I think you will find it useful for a range of research papers on the Supreme Court.

(1) It may be most interesting to examine influences on Warren and Rehnquist Court decisions in a specific area of the law. For example, right to privacy cases (abortion, reproductive health rights) are treated in notably different ways by the Warren Court justices vs. Rehnquist Court justices.

Doing so would allow for, at once, a focus on microprocesses such as strategic interaction and changes in attitudinal composition of the Court, yet permit consideration of extra-Court influences such as public opinion, congressional activity, and executive influences.

My point: "slice" your topic thinly and seek explanation for differences in decisions across the two eras.  Begin with a brief review of different theories that explain the behavior of the justices.  Second, identify a set of key decisions from each Court (Warren 1957-1969, Rehnquist 1986-present). You may want to limit your analysis to 6-8 landmark decisions. Next, in the context of the theoretical perspectives you've identified, discuss why the Rehnquist Court decided privacy cases differently from the Warren Court.  To what extent do attitudinal and strategic factors account for variation in case outcomes?

(2) In view of what I've said, you'll need a broad, general understanding of differences in decision making patterns between the two courts. Several books will be helpful in this regard.

        Bernard Schwartz, History of the United States Supreme Court [basic, readable discussion of key Warren Court decisions and personalities]

        Bernard Schwartz, Super Chief [comprehensive treatment of the Warren Court, historical in nature and good background reading for your paper]

        Peter Irons, A People's History of the United States Supreme Court [detailed, yet easily digested discussion of key cases and political dimensions of the Court's behavior, Warren/Renquist Court activity nicely placed in historical perspective]

        Elaine Goodman, "The Rights of the People: Major Decisions of the Warren Court"

        Epstein and Kobylka, "The Supreme Court and Legal Change" [widely cited and used reference]

        Segal and Spaeth, "The Supreme Court and the Attitudinal Model" [breakdown of voting patterns on Warren and early Rehnquist Court, good explanation of key theoretical perspective in judicial behavior sub-field]

        Savage, "Turning Right: The Making of the Rehnquist Court" (or some similar title)

        William Rehnquist, "The Supreme Court" (boring title, wonderful content)

        John Dean, "The Rehnquist Choice" [fascinating read]

        Tinsley Yarbrough, "The Rehnquist Court and the Constitution" [second to none scholarship]

        check for a recent title by Sue Davis, a top-notch Court scholar

        On the subject of personnel changes via presidential appointments see: Henry Abraham, "Justices and Presidents" [get most recent edition - probably late 1990s publication date]

(3) Researchers in the attitudinal tradition, popular between 1960s and early 1990s, assume that justices' votes are products of attitudes, values, and ideologies, expressed without regard for other justice's preferences. These folks account for variation in justices' votes in a way distinct from scholars testing strategic models of decision making. As the latest theoretical development in judicial behavior research, strategic models point to the importance of bargaining, accommodation, and negotiating activities among justices (i.e., strategic interaction) as shapers of case outcomes and opinion writing activities.

[Basic tack of strategic interaction models: How is one justice's behavior shaped by perceptions of another justice's probable approach to a case? How might Justice Kennedy alter his majority opinion so as to attract Justice O'Connor's vote, thereby increasing the size of the majority coalition? Did Justice O'Connor's memo to Kennedy produce a substantive change in the majority opinion?]

Also, strategic models point to the impact of inter-branch relationships, i.e., how do Congress, the president, or administrators respond to particular Supreme Court decisions. Relatedly, how might the Court alter its behavior in anticipation of the legislature or executive's policy preference?

        For a review of strategic theory, see:

        Epstein and Knight, "The Choices Justices Make" [best available description of strategic theory as applied to Court decisions]

        Check anything written by Forrest Maltzman, Paul Wahlbeck, James Spriggs - many articles dedicated to application of strategic interaction to Supreme Court case selection and opinion writing, also note their recent book, "The Collegial Game", dedicated to the development of the same theory.

        Del Dickson, "The Supreme Court in Conference" [Very recent and fresh, definitely look at this for insights concerning impact of conference deliberations on case outcomes]

        See Rogers Smith article "New Institutionalism in Public Law Research" from many years ago.

Remember: Strategic theorists hypothesize that the various features of the institution (rules, behavioral expectations and norms, established decision making processes) influence or "filter" the effects of individual actors' personalities, values, and attitudes.  Some time spent with the basic March and Olsen ("Organizations" book) may be helpful as well.

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