Legal Doctrine and Self Imposed Norms: Examining the Politics of Stare Decisis



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The "law versus politics" debate is central in the study of the Supreme Court's institutional role in US democracy and law making. Research has sought to determine if the Supreme Court is an unconstrained political actor or if it is constrained by precedent. This dissertation contributes to this debate by theorizing that there is not a direct tradeoff; instead, even a politically motivated Court can be constrained by precedent. Given precedent is an internally imposed norm, what incentive does a politically motivated Supreme Court have to adhere to precedent when it results in outcomes that deviate from the Court's most preferred ideological outcome? There has been a lack of theoretical development and empirical testing that would explain the Court's incentive to adhere to precedent. I argue that even a politically motivated Supreme Court has an interest in adhering to precedent as a means of control over the lower courts. The Court has a role as a principal with the Courts of Appeals acting as an agent. The Supreme Court uses precedent as a standard that guides lower court decision-making in thousands of cases that the Court will never hear. The Supreme Court is willing to sacrifice the dispositional outcome (who wins and who loses) in a given case to issue or adhere to a precedent that will better guide lower court decision-making in a given area.

To test this theory, this project will construct an original data set using a new measure of precedent. Specifically, "the law" and "precedent" for a case will be coded in terms of the standard of review. The standard of review can be understood as a precise legal statement of which party has the burden of proof or justification in a given case and the nature of that burden. This is an ordinal measure (coded 0-4) based on the Court's finite legal rules in a given area of law (rational basis, heightened rational basis, intermediate, heightened intermediate and strict). This novel understanding better captures the legal content of court opinions.