Vol. 32 No. 8 (September 2022) pp. 101-109US SUPREME COURT DOCTRINE IN THE STATE HIGH COURTS, by Michael P. Fix and Benjamin J. Kassow. New York: Cambridge University Press, 2020. pp.182. Paperback: $34.99. ISBN: 9781108812979.
Reviewed by David A. Hughes. Department of Political Science & Public Administration. Auburn University at Montgomery. Email: david.hughes@aum.edu. Introduction
Michael P. Fix and Benjamin J. Kassow’s US SUPREME COURT DOCTRINE IN THE STATE HIGH COURTS provides readers with a concise and engaging examination of an under-studied topic in political science’s state law and courts literature: the strategic use of U.S. Supreme Court precedent in state courts of last resort. It highlights unique state-level factors such as the doctrine of adequate and independent state grounds to demonstrate how state courts can make sophisticated use of federal precedents. It assembles an impressive new dataset to test its theoretical expectations, and it employs mixed methodologies in its execution. While its contributions to the literature are primarily methodological, its empirical findings related to how state courts oftentimes ignore U.S. Supreme Court precedents fill an important gap that will be of interest to a variety of scholars.
One of the primary issues facing the law and courts discipline over its relatively short lifespan is how seriously one ought to take the concept of legal precedent. That is, when judges, practitioners, or scholars explain judicial outcomes as a function, not of individual discretion, but of duty compelled by a pre-existing body of case-law, how much weight should these claims carry?
According to research centered on the U.S. Supreme Court, the answer would appear to be “Not much.” Justices have numerous opportunities to ignore or distinguish previous holdings and are unaccountable to others in their dispensation of justice (Segal and Spaeth 2002). Because the Court is unlikely to audit decisions by lower federal courts, these bodies are similarly incentivized to pursue the strategic maximization of policy-based payoffs (Cameron, Segal and Songer 2000).
Compared to the literature on the federal courts, less is known about how state courts treat federal precedents. This is important because in the American system of federalism, state courts are both inferior to federal courts with respect to federal questions but are also largely independent with respect to state matters of law due to concepts like the adequate and independent state grounds doctrine. This duality gives state judges unique opportunities to determine which body of precedents—state or federal—strategically serves their objectives.
Previous research examining state court compliance with federal precedents has produced mixed results. One important conclusion to this body of work, however, is that state courts possess ample flexibility to reach desired policy ends when citing federal precedents—even when those ends are at ideological odds with the precedents they cite—at least until receiving more direct guidance from a superior court (Comparato and McClurg 2007; Romans 1974).
Fix and Kassow’s book builds upon these earlier pieces by examining how state courts of last resort treat U.S. Supreme Court precedents. One of its primary accomplishments is to note that scholars should recognize possible selection bias in research that employs sampling strategies based upon case citations to federal precedents. As the authors demonstrate, state courts can simply ignore a federal precedent by not citing it at all. Recognizing that in individual cases, state high courts are faced with an array of treatment options with respect to federal precedents. Fix and Kassow operationalize their outcome variable of interest to include the following categories: (1) positive treatment, (2) negative treatment, (3) neutral treatment, and (4) no treatment at all. Fix and Kassow theorize that a state court’s treatment of a federal precedent is chiefly a function of case facts along with political-institutional variables established by prior state courts research, along with the precedential vitality of a given case.
The authors test their expectations in three issue areas that include capital punishment, religious establishment, and the right to keep and bear arms. To test their hypotheses, they gathered an original dataset consisting of hundreds of state supreme court decisions and identified these through broad issue area search language rather than relying upon citation records such as those in Shepard’s Citations. The authors then employ both quantitative and qualitative research designs. While their findings are at times mixed, several conclusions bear consideration.
First, state high courts do not launch many frontal attacks upon U.S. Supreme Court precedents. Rather, they frequently ignore them. For example, the authors find that state supreme courts ignore LEMON V. KURTZMAN (1971) in approximately half of all establishment clause cases, DISTRICT OF COLUMBIA V. HELLER (2008) or MCDONALD V. CITY OF CHICAGO, III (2010) in over one-third of Second Amendment cases, and ATKINS V. VIRGINIA (2002) in over one-tenth of relevant death penalty cases.
Relatedly, state supreme court reliance on federal precedents is also commonplace. This is to say nothing of the ideological directionality that results from a state high court’s usage of a given Supreme Court precedent. Nevertheless, state courts frequently rely upon federal precedents, even in areas not directly implicated by them. For example, in death penalty cases related to mental illness (rather than disability, which is the focus of ATKINS), Fix and Kassow find that the most likely treatment by state high courts is a neutral application of ATKINS.
Finally, case facts are an important factor with respect to state high court treatment of federal precedents. For example, state courts are more likely positively to cite ATKINS, a case dealing with the applicability of the death penalty to convicted persons who are mentally disabled, when the defendant in the case has a demonstrated IQ less than 70. Similarly, state courts are less likely to cite LEMON, a case dealing with government-established religion, positively (and more likely to ignore it) in cases dealing with civil suits against religious organizations.
Likely, the most important contribution Fix and Kassow make to the law and courts literature in US SUPREME COURT DOCTRINE IN THE STATE HIGH COURTS is to provide it with a new measurement strategy related to judicial treatment of prior precedents. The authors demonstrate that not only is ignoring a precedent a viable option among courts, but it is also a commonly used one. Their nominal treatment of precedent, therefore, is a significant improvement for those interested in judicial reliance upon legal precedent. In simple terms, the authors show that sampling methods that rely upon citations to precedents alone are at risk of producing non-representative samples.
The authors are also to be commended for their diverse and varied approach to hypothesis-testing. They identify four U.S. Supreme Court precedents related to three different civil liberties to test their claims. Two of these precedents are associated with liberal outcomes (LEMON and ATKINS) while others are associated with conservative ones (HELLER and MCDONALD).
Furthermore, the authors’ case selection allows for consideration of varying strengths of precedents. For example, ATKINS represents the strongest type of precedent studied given that the Court outlined a clear rule for lower courts to follow (the execution of the mentally disabled is unconstitutional), though it is unclear how courts should make determinations of mental disability. LEMON represents the weakest precedent because its three prongs are vague, and the justices themselves appear to disfavor the test and frequently ignore it. Meanwhile, HELLER and MCDONALD represent middling types of precedents where the right identified (firearm ownership and possession) is unclearly defined in its limits, but it is not in immediate danger of being overruled, as is the case with LEMON.
While the statistical regressions included in Fix and Kassow’s work (which appear in only two of eight chapters) are too advanced for the average undergraduate student, others with a passing knowledge of multinomial regression techniques will find the level at which the book is written highly accessible. Most results are explained textually and graphically, in addition to tabularly. The authors’ work will, therefore, be of interest to advanced undergraduates and those with a general interest in American law and courts—especially state courts. Faculty teaching graduate seminars in judicial politics should consider assigning this text alongside similar works related to precedent such as Hansford and Spriggs (Hansford and Spriggs 2006).
Furthermore, the book contains elements that will satisfy multiple scholarly interests. For example, it provides an engaging, chapter-length, historical overview of the emergence and evolution of precedent as a jurisprudential concept. It roots its justification and theory in an understudied concept in American federalism (the doctrine of adequate and independent state grounds). It also employs mixed methodologies that will be of interest both to qualitative scholars of jurisprudential regimes and quantitative scholars with interests in measurement theory and research design.
If there are areas of Fix and Kassow’s work that will need further examination in future endeavors, they will primarily relate to the book’s theoretical development, execution, and payoffs to the broader literature. The authors take pains to demonstrate that state high courts have a variety of options when it comes to how they will treat Supreme Court precedents, including ignoring them. But, outside of a handful of specific case facts, it is not always clear why state courts would prefer to ignore a precedent rather than to cite it negatively, positively, or neutrally.
The authors highlight a series of political-institutional hypotheses related to a state court’s treatment of Supreme Court precedent that emerge from the broader state courts literature. But these hypotheses are at times inconsistent, or at odds, with established research.For example, with respect to how courts are likely to treat ATKINS, a case primarily associated with liberal outcomes in death penalty jurisprudence, Fix and Kassow hypothesize that states using partisan or nonpartisan retention methods are more likely to exhibit behavior that ignores or distinguishes ATKINS compared to states using other types of retention methods (p.86). But in their assessment of LEMON, another case primarily associated with liberal outcomes, the authors decline to hypothesize how retention methods affect courts’ use of precedent, arguing, “[W]e have no specific a priori expectations regarding the way in which the method of retention used in a state would impact [treatment of] LEMON” (p.112).
It is unclear what distinguishes these areas of law. The authors acknowledge that death penalty cases are generally more salient to voters (e.g., Brace and Boyea 2008) but do not engage with more recent works arguing that case salience, accountability mechanisms, and voter/elite ideology converge to condition judicial behavior in American state courts—even those using elite appointment selection/retention methods (Canes-Wrone, Clark, and Kelly 2014; Canes-Wrone, Clark and Park 2012; Canes-Wrone, Clark and Semet 2018; Caldarone, Canes-Wrone and Clark 2009; Cann and Wilhelm 2011; Shepherd 2009).
In light of this more recent literature on judicial institutions, salience, and ideology, a better approach future works might employ would be to condition state retention methods with voter/elite ideology across the different issue areas. As it stands, Fix and Kassow find no effect for state ideology in a court’s treatment of ATKINS and the death penalty (using updated Berry et al. [1998, 2010] scores). This is an unanticipated result given the decades’ worth of research tying ideology to state supreme court outcomes in capital punishment cases (e.g., Hall 1987; Brace and Boyea 2008; Canes-Wrone, Clark and Kelly 2014).
With respect to the establishment clause, Fix and Kassow find that in more liberal states, courts are more likely to neutrally cite LEMON compared to ignoring it. This finding makes more intuitive sense. Nevertheless, if establishment clause cases are less salient to voters or elites compared to death penalty cases, it remains unclear why ideology would be significantly associated with treatment outcomes in the former area but not the latter. Some of these issues will need to be further examined in future works as well.
In this regard, Cann and Wilhelm offer one possible path forward by comparing judicial behavior in cases covered by the media compared to those with no such coverage (Cann and Wilhelm 2011). They find that media coverage conditions judicial behavior toward public opinion. Similarly, Canes-Wrone, Clark, and Semet compare judicial behavior in low-salience cases in the presence and absence of televised attack advertising, finding that amidst attack advertising, judicial behavior is, again, conditioned toward popular policies (Canes-Wrone, Clark, and Semet 2018). Future works might consider how a state court’s treatment of a Supreme Court precedent hinges upon mass salience.
In addition to their political-institutional expectations, the authors identify a key legal hypothesis related to the vitality of jurisprudential regimes. Consistent with prior works such as Hansford and Spriggs and Fix, Kingsland and Montgomery, the authors measure the annual difference between positive and negative treatments of a given precedent in a given state (Hansford and Spriggs 2006; Fix, Kingsland, and Montgomery 2017). Contrary to expectations, the authors find no evidence that prior treatment of LEMON affects a court’s treatment in a given case. In death penalty cases, they find that prior positive treatment of ATKINS is associated with a greater likelihood of neutrally treating it compared to ignoring it. This makes good sense. Nevertheless, Fix and Kassow find that prior positive treatment of ATKINS is also associated with a higher likelihood of negatively treating the precedent compared to a neutral citation. This runs counter to one’s expectations and is not fully explained. Finally, with respect to Second Amendment case-law, the authors find little association between a court’s prior treatment of HELLER or MCDONALD and other concepts such as geography or ideology. Regardless, this finding is possibly due to a small sample size owing to the young age of these precedents.
One possible, though time-consuming, approach to reconciling these seemingly contradictory findings related to legal regimes is to build more directly upon Comparato and McClurg’s work by examining the ideological (in)congruence between state courts and U.S. Supreme Court precedents (Comparato and McClurg 2007). Using ATKINS as an example, one could plausibly imagine a scenario in which a “positive” treatment nevertheless reaches a conservative outcome. Thus, future scholarship might consider how courts reach heterogenous political outcomes within treatment categories as a function of intra-court ideological factors. A paucity of data on state supreme court ideology prevented Fix and Kassow from directly considering court ideology in their analyses, so future works will also need to overcome these obstacles as they further the analysis.
Fix and Kassow tackle an ambitious research question in their text. Nevertheless, they find mixed evidence that political factors, institutional factors, or legal factors affect a state high court’s treatment of ATKINS, LEMON, HELLER, or MCDONALD. Absent these theoretical explanations for court behavior, case facts remain one of the only consistent explanatory factors. In light of the debate surrounding the attitudinal, strategic, and legal models, it is unclear how this work fits within the broader law and courts literature generally or, more specifically, the state courts literature. Future works will need further to refine expectations surrounding how state courts treat federal precedents, how to test these hypotheses, and how to tie these results back to previous works.
When the American state courts literature came into its stride in the 1990s and 2000s, the broader public law literature had largely interred the legal model of jurisprudential behavior at the federal level. Perhaps as a consequence, state courts scholars have never placed quite the same emphasis on legal factors as it has ideological and institutional ones.
Fix and Kassow’s US SUPREME COURT DOCTRINE IN THE STATE HIGH COURTS nicely helps to bring some of these legal factors back into focus by examining how state courts treat U.S. Supreme Court precedents. The authors identify an important and generally overlooked legal concept in states—the adequate and independent state grounds doctrine—to demonstrate how state courts can strategically use (or ignore) Supreme Court precedents in the areas of capital punishment, the establishment clause, and the right to keep and bear arms.
What the authors have accomplished in this work is multifaceted. First, they provided the discipline with a new and superior means of measuring judicial treatments of legal precedents. Second, they found that one treatment option—ignoring prior rulings—is commonplace among state courts, and failure to account for this strategic choice could lead to ungeneralizable results. Third, they provided the discipline with an impressive new source of data related to state supreme court decision-making and assessed these data using a diverse selection of research methods.
Finally, the authors identified a number of case facts that are likely to color a state court’s treatment of a U.S. Supreme Court precedent. Given that Fix and Kassow found that legal, attitudinal, and institutional factors play a mixed role in state court treatments of Supreme Court precedents, future works will need to better model how these political-institutional and legal factors affect treatment strategies. But Fix and Kassow offer the discipline an excellent starting point that will be of interest to scholars and practitioners alike.
REFERENCES:
Berry, William D., Evan J. Ringquist, Richard C. Fording, and Russell L. Hanson. 1998. “Measuring Citizen and Government Ddeology in the American States, 1960-93.” American Journal of Political Science, 23(1): 327-348.
Berry, William D., Richard C. Fording, Evan J. Ringquist, Russell L. Hanson, and Carl E. Klamer. 2010. “Measuring Citizen and Government Ideology in the U.S. States: A Re-appraisal.” State Politics and Policy Quarterly, 10(2): 117-135.
Brace, Paul, and Brent D. Boyea. 2008. "State Public Opinion, the Death Penalty, and the Practice of Electing Judges." American Journal of Political Science, 52(2): 360-372.
Caldarone, Richard P., Brandice Canes-Wrone, and Tom S. Clark. 2009. "Partisan Labels and Democratic Accountability: An Analysis of State Supreme Court Abortion Decisions." The Journal of Politics, 71(2): 560-573.
Cameron, Charles M., Jeffrey A. Segal, and Donald Songer. 2000. "Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions." American Political Science Review, 94(1): 101-116.
Canes-Wrone, Brandice, Tom S. Clark, and Jason P. Kelly. 2014 "Judicial Selection and Death Penalty Decisions." American Political Science Review, 108(1): 23-39.
Canes-Wrone, Brandice, Tom S. Clark, and Jee-Kwang Park. 2012. "Judicial Independence and Retention Elections." The Journal of Law, Economics, and Organization, 28(2): 211-234.
Canes‐Wrone, Brandice, Tom S. Clark, and Amy Semet. 2018. "Judicial Elections, Public Opinion, and Decisions on Lower‐Salience Issues." Journal of Empirical Legal Studies, 15(4): 672-707.
Cann, Damon M., and Teena Wilhelm. 2011. "Case Visibility and the Electoral Connection in State Supreme Courts." American Politics Research, 39(3): 557-581.
Comparato, Scott A., and Scott D. McClurg. 2007. "A Neo-Institutional Explanation of State Supreme Court Responses in Search and Seizure Cases." American Politics Research, 35(5): 726-754.
Fix, Michael P., Justin T. Kingsland, and Matthew D. Montgomery. 2017. "The Complexities of State Court Compliance with US Supreme Court Precedent." Justice System Journal, 38(2): 149-163.
Hall, Melinda Gann. 1987. "Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study." The Journal of Politics, 49(4): 1117-1124.
Hansford, Thomas G., and James F. Spriggs. 2006. The Politics of Precedent on the US Supreme Court. Princeton University Press.
Romans, Neil T. 1974. "The Role of State Supreme Courts in Judicial Policy Making: Escobedo, Miranda and the Use of Judicial Impact Analysis." Western Political Quarterly, 27(1): 38-59.
Segal, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. Cambridge University Press.
Shepherd, Joanna M. 2009. "Are Appointed Judges Strategic too?" Duke Law Journal, 58: 1589-1626.
CASES:
ATKINS V. VIRGINIA, 536 U.S. 304 (2002).
DISTRICT OF COLUMBIA V. HELLER, 554 U.S. 570 (2008).
LEMON V. KURTZMAN, 403 U.S. 602 (1971).
MCDONALD V. CITY OF CHICAGO, III., 561 U.S. 742 (2010).
© Copyright 2022 by author, David Alan Hughes.
