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1/15/2006

Legislatures tailor policy more to state supreme courts than to public

When it comes to public policy, state Supreme Courts appear to have a greater influence than their citizenry over state lawmakers. In the case of abortion and death-penalty laws, university researchers argue that state courts are setting the conditions for passing or not passing legislation even before cases reach them.

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In 1972, Furman v. Georgia suspended the death penalty under states' existing laws, and a year later, Roe v. Wade effectively erased existing abortion restrictions.   Over the next 20 years, state legislators' willingness to pass new laws around these two highly controversial policy areas has been based primarily on judges' ideologies and the likelihood of court intervention.

"The public policy formed around these two issues during that period was influenced more by the preferences of the courts than those of the states' citizens," says Paul Brace, Rice University's Clarence R. Carter Professor of Political Science.

"When policymakers viewed a court as ideologically hostile and prone to intervention, they were less likely to enact policy. "

In this way, Brace argues, state supreme courts influenced the amount and content of law in these policy areas before cases even reached them. For example, policymakers uniformly enacted fewer death penalty laws because of the mandatory court review of such legislation. With state courts required to hear each case, legislators believed there was a greater likelihood death penalty laws could be overturned, particularly by a hostile court.   On the other hand, lawmakers were more likely to pass restrictive abortion statutes, since a review of those laws is up to the discretion of the courts.

"Regardless of the issue, lawmakers were influenced not only by the court's ability to intervene, but by whether it was friendly or hostile in terms of its ideology," Brace explains.

In an article in The Policy Studies Journal, Brace and Laura Langer, an associate professor of political science at the University of Arizona, illustrate the preemptive power of state supreme courts by empirically analyzing how their ideologies influenced the passage of state abortion and death penalty legislation.   The researchers examined data in all 50 states on death penalty law enactments from 1973 to 1996 and on abortion laws from 1974 to 1993. They compared the content and number of those laws with the political ideology of the states' lawmakers, judges and citizenry in that same period.

"We found that the amount of potentially controversial abortion legislation passed in that period tended to be encouraged by conservative courts or discouraged by liberal courts," Brace says.

Brace points out that a casual observer might think the courts were being inactive, when, in fact, their influence simply may have reduced the supply of cases they would have overturned.  

"In essence, they were having an effect on the law without doing anything," he argues.

In addition to determining how the courts' ideologies affected policy adoption, Brace and Langer took into account states that allow for advisory opinions. Such statutes permit their legislators to ask their supreme courts how they would rule on the constitutionality of a prospective law.   The researchers also considered the possibility of party control influencing legislation, as well as provisions in some state constitutions that guarantee their citizens rights beyond those in the U.S. constitution.

"The presence of a state constitutional right to privacy, for example, significantly increases the likelihood of court intervention in abortion law," Brace says.

"Because this right can provide grounds for invalidating restrictive abortion law, we would expect policymakers to avoid enacting such legislation in states where this provision exists. "

Other findings of their study indicate:

•  when states' citizens and their courts were more liberal than their policymakers, restrictive abortion laws were much less likely to be enacted.

•  in states where courts were more conservative, abortion laws were likely to be enacted.

•  states with a right-to-privacy provision were almost 60 percent slower to enact abortion restrictions after Furman v. Georgia.

•  lawmakers enacted restrictive abortion laws affecting minors more quickly than those regulating adults.

•  policymakers in states allowing advisory opinions were significantly less likely to enact the death penalty.

•  as the murder rate in a state increased by a unit, state policymakers were 20 percent faster to enact the death penalty.

•  southern states are among the most active when it comes to death sentencing and executions.

Given the dearth of information on state courts and their role in state policymaking, Brace believes their findings have substantial implications for academicians and practitioners alike, beginning with the conventional notions of judicial activism and restraint.

"What looks like judicial inactivity should not be confused with lack of judicial power," Brace says. "Inactivity by the courts may mask very significant influence in the policymaking of their states. "

A member of Rice University's political science faculty since 1996, Brace is co-author of Follow the Leader: Opinion Polls and the Modern Presidents (Basic Books, 1992), author of State Government and Economic Performance (Johns Hopkins University Press, 1993), and co-editor of The Presidency in American Politics (NYU Press, 1989) and American State and Local Politics (Chatham House, 1999).

His research on the American courts, legislatures and the Presidency has been widely published in such scholarly journals as Political Science Review, American Journal of Political Science, Journal of Politics, Political Research Quarterly, Polity, Social Science Quarterly, American Politics Quarterly and Legislative Studies Quarterly.

Brace earned his undergraduate degree at the University of Oregon and his master's and Ph.D. degrees at Michigan State University.

For more information on this research, contact Brace at pbrace@rice.edu or B.J. Almond in the Office of News and Media Relations at balmond@rice.edu .