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dissertation entitled

JUDICIAL IMPACT: THE RELATIONSHIP BETWEEN THE UNITED
STATES SUPREME COURT AND STATE COURTS OF LAST RESORT IN
SEARCH AND SEIZURE DECISION MAKING

presented by

WENDY L. MARTINEK

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JUDICIAL IMPACT:
THE RELATIONSHIP BETWEEN THE UNITED STATES SUPREME COURT
AND STATE COURTS OF LAST RESORT IN SEARCH AND SEIZURE
DECISION MAKING

By

Wendy L. Martinek

A DISSERTATION

Submitted to
Michigan State University
in partial fulﬁllment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY
Department of Political Science

2000

ABSTRACT
JUDICIAL IMPACT:

THE RELATIONSHIP BETWEEN THE UNITED STATES SUPREME COURT
AND STATE COURTS OF LAST RESORT IN SEARCH AND SEIZURE
DECISION MAKING
By

Wendy L. Martinek

The central motivating question underlying the study of judicial impact is the
extent to Which lower courts are, in practice and not just in word, faithful to the
policy prescriptions embodied in decisions made by the United States Supreme
Court. The federated nature of the American judiciary, with each state
possessing a separate court system, calls particular attention to the extent to
which state courts Of last resort are obedient to the nation’s highest tribunal.
There are seemingly few resources at the disposal of the Supreme Court with
which to sanction wayward state supreme courts. On the other hand, the legal
culture within which judges operate, including state supreme court judges,

cultivates the value of Obedience to superior courts.

I examine the faithfulness of state supreme courts to the United States Supreme
Court in the context of search and seizure decision making. I first compare the
extent to which the same factors that are dispositive in Supreme Court search
and seizure decision making are dispositive in state courts of last resort. I also
examine the effect of the Supreme Court’s increasing likelihood of upholding

challenged searches and seizures on the likelihood Of state supreme courts

doing the same. Using a sample of search and seizure decisions from 1961-
1990 I ﬁnd that state supreme courts are largely both congruent with and
responsive to the United States Supreme Court. I then develop a precedent
model of automobile search and seizure decision making to more precisely test
the effects of Supreme Court rulings on state supreme court decision making.
Using the universe of automobile search and seizure decisions rendered by state
supreme courts from 1970 to 1990, I find that they respond not only to the
particulars Of the cases but also to relevant Supreme Court rulings. In extending
the precedent model into an integrated model that takes into account political,
contextual, and institutional features in the individual states, I ﬁnd that legal
stimuli continue to exert some inﬂuence, though the preferences of the supreme

court and electoral constituencies come into play as the dominant factors.

Collectively, these results suggest that the propensity of state supreme courts to
comply with the direction of the United States Supreme Court is conditioned in
meaningful ways by the political and institutional environment in the individual
states. These ﬁndings comport with previous ﬁndings in the study Of judicial
decision making that emphasize the importance of context to understanding
outcome but raise normative questions about the role of the United States

Supreme Court as the ﬁnal arbiter of the federal constitution.

For Harold J. Spaeth, my teacher and friend,
and
Judith Ann and Richard Joseph Martinek, my teachers in life.

ACKNOWLEGMENTS

I would like to express my gratitude and appreciation for the insights, guidance,
support and encouragement of my dissertation committee: Melinda Gann Hall,
Michael Mintrom, Reginald Sheehan, Harold J. Spaeth. I am especially indebted

to Drs. Sheehan and Spaeth.

TABLE OF CONTENTS

LIST OF TABLES viii
LIST OF FIGURES x
INTRODUCTION 1
CHAPTER 1
JUDICIAL IMPACT 4
The Concept of Judicial Impact 4
The Federated Judicial System 6
Overview Of the Dissertation 22
Notes 24
CHAPTER 2
JUDICIAL IMPACT AND THE AMERICAN STATES 25
The Concept of Judicial Impact 25
Discretion and State Supreme Courts 34
Goals, Attitudess, Strategies and Institutions 37
An Institutional Theory of Judicial Impact 48
Notes 51
CHAPTER 3
CONGRUENCE AND RESPONSIVENESS: THE CASE OF STATE SUPREME
COURTS 53
Congruence and Responsiveness 53
Choosing Search and Seizure 64
The Search and Seizure Data 73
Analysis 81
Conclusion 87
Notes 92
Appendix 3A. West’s Decennial Digest Search and Seizure Key
Numbers 94
Appendix 33. Sample Distribution of State Supreme Court Search
and Seizure Cases by State 98
Appendix 3C. Sample Distribution of State Supreme Court Search
and Seizure Cases by Year 100
Appendix 3D. Search and Seizure Variable Coding 101
Appendix 3E. Search and Seizure Descriptive Statistics 103
Appendix 3F. Multicollinearity 104

Appendix 36. Diagnostic Evaluation 105

vi

CHAPTER 4
SUPREME COURT PRECEDENT AND AUTOMOBILE SEARCH AND SEIZURE

IN THE AMERICAN STATES 107

Automobile Search and Seizure Jurisprudence 108

The Automobile Search and Seizure Fact Pattern 118

The Automobile Search and Seizure Data 123

Conclusion 132

Notes 1 35
Appendix 4A. United States Supreme Court Automobile Search

and Seizure Decisions, 1970-1990 137

Appendix 48. Automobile Search and Seizure Variable Coding 139
Appendix 40. Automobile Search and Seizure Descriptive

Statistics 141
Appendix 4D. Multicollinearity 142
CHAPTER 5
PRECEDENT, PREFERENCES, INSTITUTIONS, AND CONTEXT 143
Operationalizing an Institutional Model of Judicial Impact 147
Data and Analysis 160
Conclusion 170
Notes 174
Appendix 5A. Constitutional Provisions: Search and Seizure 175
Appendix 58. Integrated Automobile Search and Seizure
Descriptive Statistics 185
Appendix 5C. Multicollinearity 186
CHAPTER 6
CONCLUSION: JUDICIAL IMPACT IN CONTEXT 187

REFERENCES 196

vii

LIST OF TABLES

Table 1.1 State Court Structure, 1993 12
Table 1.2 State Supreme Court versus United States Supreme Court
Dispositions, 1983-1994 15
Table 1.3 US. Supreme Court Review Of State Supreme Court Decisions,
1953-1990 Terms 16
Table 1.4 US. Supreme Court Dispositions of State High Court Decisions,
1953-1990 Terms 18
Table 3.1 Segal’s Search and Seizure Fact Pattern 55
Table 3.2 The Concepts of Congruence and Responsiveness 60

Table 3.3 Distribution Of State Supreme Court Search and Seizure Cases,
1961-1990 74

Table 3.4 Top and Bottom Rankings 76

Table 3.5 Logit Estimation of State Supreme Court Search and Seizure
Decision Making, 1961-1990 82

Table 3.6 Search and Seizure Decision Making Patterns, US. Supreme
Court, US. Courts of Appeals and State Supreme Courts,

1961-1990 85
Table 3A.1 Sample Distribution of State Supreme Court Search and Seizure

Cases by State 98
Table 3A.2 Sample Distribution of State Supreme Court Search and Seizure

Cases by Year 100
Table 3A.3 Search and Seizure Descriptive Statistics 103

Table 4.1 Automobile Fact Pattern with Relevant Supreme Court Rulings 122

Table 4.2 Sample Distribution of State Supreme Court Search and Seizure
Cases by State 124

Table 4.3 Top and Bottom Rankings 127

viii

Table 4.4 Logit Estimation of Precedent Model, State Supreme Court
Automobile Search and Seizure Decision Making,
1 970-1 990 1 30

Table 4A.1 Automobile Search and Seizure Descriptive Statistics 141

Table 5.1 Integrated State Supreme Court Automobile Search and Seizure
Decision Making Model Hypotheses 159

Table 5.2 Logit Estimation of Integrated Model, State Supreme Court
Automobile Search and Seizure Decision Making Model:
Courts with Democratic Majorities,1970—1990 161

Table 5.3 Logit Estimation Of Integrated Model, State Supreme Court
Automobile Search and Seizure Decision Making Model:
Courts with Republican Majorities,1970-1990 163

Table 5A.1 Integrated Automobile Search and Seizure Descriptive
Statistics 185

Figure 1.1
Figure 1.2
Figure 1.3
Figure 1.4

Figure 2.1

Figure 2.2

Figure 3.1

Figure 3.2

Figure 4.1

LIST OF FIGURES

The American Judiciary 7
State Court Structure Prototype 8
Minnesota Court Structure 9
Rhode Island Court Structure 10
Strategic Considerations in State Supreme Court Decision
Making: Sanction Unlikely 43
Strategic Considerations in State Supreme Court Decision
Makine: Sanction Likely 44
United States Supreme Court Search and Seizure Decision
Making, 1960-1990 Terms 72
State Supreme Court Search and Seizure Cases on the Docket,
1 960-1 990 77
State Supreme Court Automobile Search and Seizure Cases

on the Docket, 1970-1990 129

INTRODUCTION

A fundamental component of the study Of judicial impact is the investigation of
the influence higher courts exercise over lower courts. As the nation’s highest
tribunal, the United States Supreme Court has rightly been the focus of the bulk
of studies of judicial impact. This dissertation is specifically concerned with the
relationship between the United States Supreme Court and state courts of last
resort. This focus affords the opportunity to unravel the multiplicity of forces at
play in determining the decision making behavior of state supreme courts by
purposely examining the nexus of horizontal and vertical relationships within
which state supreme courts are nested. Ultimately, this dissertation advances
our understanding of judicial decision making outside the confines of a single

institution.

I begin with the construction Of an institutional theory of judicial impact, one that
brings to bear the insights developed in both the judicial impact literature and the
strategic behavior literature. I theorize that the extent to which state supreme
courts are faithful to the policy prescriptions embedded in United States Supreme
Court decisions is conditioned by the local political context as mediated by
method Of judicial selection. Specifically, state supreme courts will be less likely
to adhere to United States Supreme Court rulings as doing so increases the

likelihood of retaliation in the form of removal from ofﬁce by local electorates.

I take an incremental approach to investigating the notion of state supreme court
faithfulness, beginning ﬁrst with a comparison of the utility of an established set
of case facts in the area of search and seizure for explaining the decisions Of the
United State Supreme Court and state courts of last resort. I find that the latter of
both congruent with and responsive to the former. That is, the search and
seizure case facts have the same substantive effect in state supreme court
search and seizure decision making as they do in the Supreme Court, and, as
the Supreme Court has become more likely to uphold a challenged search and

seizure, so, too, have the state supreme courts.

I then narrow the focus to examine the universe Of state automobile search and
seizure decisions from 1970-1990, allowing me to take into account not only
speciﬁc case facts but relevant United States Supreme Court decisions. In
developing and applying this legal or precedent model of state supreme court
decision making, I ﬁnd evidence that state supreme courts decide automobile
search and seizure cases both on the basis of the facts of the cases before them

and in light of United States Supreme Court precedent.

Finally, I assess the robustness of the legal model by introducing state political
context as mediated through method of judicial retention. I ﬁnd that the inﬂuence
of the United States Supreme Court is signiﬁcantly modiﬁed by state context.
Courts with Republican decision-making majorities evidence no inﬂuence on their

automobile search and seizure decision making. Courts with a majority of

Democratic judges do show evidence of being influenced by the United States
Supreme Court but the inﬂuence is slight. More important to the disposition of
such cases by state supreme courts is the distribution of preferences in the

electorate.

This dissertation Offers no definitive answer to the question of determinative
factors for the faithfulness of state supreme courts. However, this study is
unique in Offering an integrated model Of judicial impact that is replicable for other

substantive areas.

CHAPTER ONE

JUDICIAL IMPACT

The Concept of Judicial Impact

When an appellate court decides a case, the parties most immediately affected
by the resolution of that case are the litigants. However, the primary function of
an appellate court is not resolving a dispute for particular litigants; the trial court
below has accomplished that function. The primary functions of an appellate
court do, however, lnclude policy enunciation and the supervision of the lower
courts.1 Though we may conceptually differentiate among the functions of
executives, legislatures and courts, the nature of their work makes appellate
courts policy-making entities in their own right no less so than executives and
legislatures. Appellate courts explicitly enunciate policy in the text of their
decisions when they announce or modify rules Of procedure, apply statutes or

interpret constitutional provisions.

Though it may be less explicit, these courts also make policy via the signals they
send in disposing of their cases, since lower courts are certainly cognizant of the
decision-making patterns and trends of their superiors. In the supervision of

lower courts, appellate courts act to insure uniformity in the application of rules of
procedure and lower court adherence to appellate interpretations of statutes and
constitutions. This has been and continues to be the central focus of judicial

impact research: the faithfulness of inferior courts to superior courts. If appellate

courts are not able to inﬂuence the behavior of their subordinates, the effect of

their decisions cannot extend beyond the litigants involved in the appeal. In
short, they are not able to effectively perform their supervisory functions and any

policy enunciation is a futile exercise at best.

In the American context, scholars have devoted the lion’s share of their attention
to the ability of the United States Supreme Court to induce faithful behavior on
the part of lower courts, whether they are state or federal. This is not to deny the
importance of other inferior-superior court relationships, especially that between
the Courts of Appeals and federal district courts and that between state courts of
last resort and lower state courts. By the same token, acknowledging the
importance of these court interactions does not diminish the importance of the
relationship between the United States Supreme Court and lower courts. The
Supreme Court remains the ultimate adjudicator in federal constitutional and
statutory interpretation, at least in theory. Its ability to effectuate policy, to play its
designated role as a separate but co-equal branch of the federal government, is
conditioned in meaningful ways by its ability to inﬂuence the actions of lower
courts. The Supreme Court’s decisions are not self-effectuating. They require
other agents - executives, legislators, bureaucrats, lower courts — to act as well.
The primary holding or intended effect of a Supreme Court decision is intimately
dependent upon the treatment of that decision by lower courts. As Murphy has
astutely observed, “The Supreme Court typically formulates general policy.
Lower courts apply that policy and, working in its interstices, inferior judges may

materially modify the High Court’s determinations” (1959, 1018).

The Federated Judicial System

The formal structure of the American judiciary is hierarchical in nature, with the
Supreme Court occupying the apex and the lower federal and state courts
assorted below, as illustrated in Figure 1.1. Implicit in this spatial depiction Of the
judicial system is the notion of the Supreme Court as exercising ﬁnal judicial
authority over all of the inferior courts, both state and federal. The American
judicial system is a federated one, however, with each state having a separate
judiciary that possesses significant powers of its own. The states exhibit
considerable variation in the structure of their court systems. While advocates of
state court organizational reform promote clearly delineated paths for appeal in
conjunction with simplified judicial structures (with one of each of the following:
trial court of limited jurisdiction, trial court of general jurisdiction, intermediate
appellate court, and court of last resort, as depicted in Figure 1.2), there are

innumerable variations on this theme.2

Minnesota, for example, possesses a very simpliﬁed court structure, with a single
court of last resort, a single intermediate appellate court and a single trial court of
general jurisdiction, but no trial court of limited jurisdiction, as depicted in Figure
1.3. Compare the Minnesota judiciary to that of Rhode Island, as depicted in
Figure 1.4. Rhode Island has not one but ﬁve trial courts of limited jurisdiction,
two rather than one trial court of general jurisdiction and no intermediate

appellate court. The full diversity among state court structures is more evident in

 

United States Supreme Court

 

 

 

 

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I State Court of Last Resort I

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I Statelntennediate Appellate Court I

State Trial Courts of General Jurisdiction

[State Trial Courts of Limited Jurisdiction I

 

 

 

 

 

 

 

Figure 1.2

State Court Structure Prototype

Source: Rottman, Flango and Lockley (1995).

 

Coat of Last Resort

I

Court of Appeals
Intermedate Appellde Court

I

District Court
Tn'd Coat of Generd Jurisdction

I Supreme Court I

 

 

 

 

 

 

 

 

 

Figure 1.3

Minnesota Court Structure

Source: Rottan, Flango and Lockley (1995).

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Table 1.1, which reports the number of each type of court for each state. For
example, while most states have a single state court of last resort, Oklahoma and
Texas each have two. Further, while six states have no trial courts of limited
jurisdiction and ten have one apiece, twenty-one have two or three such courts

and thirteen have four or more.

Regardless of the particular configuration of a state’s judiciary, when a question
related solely to the interpretation and application of a state constitution or state
law arises, the federal judiciary is (according to the precepts of federalism)
virtually silent. In these cases the respective state courts of last resort reign
supreme}3 However, when what is at issue is a matter of federal law or the
application of the federal constitution, the United States Supreme Court is
formally the final arbiter and state supreme courts are considered bound by the

applicable rulings of the nation’s court of last resort.

Studies of judicial impact largely concern themselves with the extent to which
lower courts are, in practice and not just in word, faithful to the policy
prescriptions embodied in Supreme Court decisions. The Court has seemingly
few resources at its disposal for insuring lower court compliance with its
decisions, particularly when considering state supreme courts. State supreme
courts are beholden to the US. Supreme Court for neither their position on the
bench nor their ﬁnancial remuneration. The only direct sanction available to

impose on a wayward state supreme court is reversal, an unlikely occurrence for

11

Table 1.1

State Court Structure, 1993

 

State Number of Number of Number Of Number of
Trial Courts Trial Courts Intermediate State Courts
of Limited of General Appellate of Last
Jurisdiction Jurisdiction Courts Resort

 

(.0
.3
N
.1.

Alabama*
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana“
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey

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12

Table 1.1 (cont’d.)

 

New Mexico 4 1 1 1
New York*** 8 2 2 1
North Carolina 1 1 1 1
North Dakota 2 1 1 1
Ohio 4 1 1 1
Oklahoma 3 1 1 1
Oregon 4 2 1 1
Pennsylvania 4 1 2 1
Rhode Island 5 2 0 1
South Carolina 4 1 1 1
South Dakota 0 1 0 1
Tennessee“ 3 4 2 1
Texas 5 2 1 2
Utah 3 1 1 1
Vermont 2 3 0 1
Virginia 1 1 1 1
Washington 2 1 1 1
West Virginia 2 1 0 1
Wisconsin 1 1 1 1
Wyoming 3 1 0 1

 

* Alabama and Tennessee each have one intermediate appellate court
designated to hear criminal appeals and one designated to hear civil appeals.

** Indiana has one general jurisdiction intermediate appellate court, the Indiana
Court of Appeals, and one intermediate appellate court designated to hear tax
appeals, the Indiana Tax Court.

*** New York has one general jurisdiction intermediate appellate court, the
Appellate Division of the Supreme Court, and one intermediate appellate court
designated to hear civil and criminal appeals from the trial courts of New York
City, the Appellate Terms of the Supreme Court.

Source: Rottman, Flango and Lockley (1995).

13

any particular state court decision in light of the number of state court decisions

relative to the number of US. Supreme Court decisions in any given year.

Consider, for example, the ten-year period of 1983-1994. (See Table 1.2.) The
yearly average number of cases disposed of formally by a state during this period
was 563.4 Compare this to the US. Supreme Court average per term for the
same period of 145. Taking into account the fact that there are 52 courts of last
resort (one each for all states with the exception of Oklahoma and Texas which
have two apiece), this means the ratio of state supreme court dispositions to US.
Supreme Court disposition is almost 1:200. More directly to the point, consider
the number of state supreme court cases actually reviewed by the US. Supreme
Court. (See Table 1.3.) In examining US. Supreme Court review of state high
court decisions during the 1953-1990 terms, Brisbin and Kilwein (1994) report
relatively few state supreme court cases reviewed per Supreme Court term.

The highest mean number of cases reviewed for the period is for criminal
procedure cases at 10.6 per term, while civil rights, 1St Amendment, due process,
and union and economic cases each average less than 5 per term.5 Further, of
those cases reviewed by the US. Supreme Court, typically no more than a third
are reversed outright, depending upon the type of case, with less than 25%
reversed over the entire period. (See Table 1.4.) Comparing these ﬁgures to the
average number of cases disposed of by state courts suggests that, while the
Supreme Court may be the nominal ﬁnal arbiter of judicial disputes, the state

supreme courts most often play the role of de facto ﬁnal arbiter.

14

Table 1.2

State Supreme Court versus United States Supreme Court Dispositions

 

 

 

1983-1 994
yeara state supreme court US. Supreme Court US. Supreme Court
averageb term“ dispositions

1985 469 (34) 1984 170
1986 469 (37) 1985 171

1 987 529 (39) 1 986 1 74
1988 543 (42) 1 987 160
1989 562 (41) 1988 168

1 990 522 (44) 1 989 146
1991 539 (45) 1990 125

1 992 586 (43) 1 991 1 23

1 993 607 (42) 1 992 1 1 5
1994 906 (35) 1993 99

1 985-94 563 (436) 1 984-93 145. 1

 

Source: National Center for State Courts (1995); Epstein, Segal, Spaeth and
Walker (1996).

aThe National Center for State Court reports calendar year ﬁgures for state
supreme courts. The US. Supreme Court ﬁgures are reported on the basis of
Supreme Court term. A new term begins October of each year and runs,
typically, until mid-summer.

b State supreme court averages are based on those states reporting complete
caseload data to the National Center for State Courts. Cell entries are the
average number of dispositions with the number of states reporting full caseload
data appearing in parentheses.

15

Table 1.3

U.S. Supreme Court Review of State Supreme Court Decisions,
1953-1990 Terms

 

 

Criminal Civil 1“t Due Union a
State Procedure Rights Amendment Process Economic
Alabama 12 5 8 1 7
Alaska 2 3 1 0 1
Arizona 13 4 2 2 1
Arkansas 6 1 6 0 3
California 17 16 12 0 8
Colorado 5 1 0 0 2
Connecticut 7 1 1 0 0
Delaware 5 3 0 0 2
Florida 39 5 5 2 3
Georgia 14 14 8 1 5
Hawaii 0 0 0 0 0
Idaho 2 2 0 0 3
Illinois 22 8 9 3 10
Indiana 2 1 3 3 2
Iowa 1 4 0 0 3
Kansas 1 2 2 1 4
Kentucky 9 1 1 0 0
Louisiana 22 14 6 1 2
Maine 2 1 0 0 0
Maryland 14 5 8 0 7
Massachusetts 8 1 5 3 3
Michigan 8 2 2 1 4
Minnesota 2 1 4 0 4
Mississippi 9 4 3 0 4
Missouri 6 6 0 2 7
Montana 2 2 0 0 1
Nebraska 1 2 1 0 3
Nevada 1 0 1 1 0
New 1 0 6 1 5
Hampshire
New Jersey 9 2 1 0 8
New Mexico 3 0 0 0 3

 

16

Table 1.3 (cont’d.)

 

 

New York 34 1 1 27 4 10
North Carolina 12 6 0 1 4
North Dakota 0 3 1 0 1
Ohio 20 4 17 4 15
Oklahoma 7 3 1 2 3
Oregon 5 2 3 0 2
Pennsylvania 12 2 4 3 5
Rhode Island 1 0 1 0 0
South Carolina 6 4 6 0 2
South Dakota 2 1 0 0 1
Tennessee 9 3 2 0 1
Texas 27 6 1 2 7
Utah 1 3 0 1 2
Vermont 0 0 1 0 2
Virginia 4 9 10 1 8
Washington 12 12 7 1 7
West Virginia 0 1 2 2 6
Wisconsin 4 2 6 3 3
Wyoming 0 2 0 0 0
Total 401 1 85 1 84 46 184
Average per

Term 10.6 4.9 4.8 1.2 4.8

 

Source: Adapted from Brisbin and Kilwein (1994), Tables 3-7.

17

Table 1.4

U.S. Supreme Court Dispositions of State High Court Decisions,
1953-1990 Terms

 

 

 

 

Criminal Civil 1St Due Union &
Period Procedure Rights Amendment Process Economic
Early Warren 22.9% 17.2% 33.3% 14.3% 21.3%
(1953-1962) reversed reversed reversed reversed reversed
29.2% 62.1 25.6% 21.4% 32.8%
remanded remanded remanded remanded remanded
Later Warren 27.0% 35.8% 49.2% 28.6% 28.6%
(1 962-1 969) reversed reversed reversed reversed reversed
52.2% 53.7% 37.3% 71.4% 39.3%
remanded remanded remanded remanded remanded
Burger 12.5% 19.2% 45.2% 8.7% 13.8%
(1969-1986) reversed reversed reversed reversed reversed
55.3% 55.1% 35.6% 69.6% 24.6%
remanded remanded remanded remanded remanded
Rehnquist 13.0% 10.0% 7.7% 11.1% 0.0%
(1 986-1 991 ) reversed reversed reversed reversed reversed
55.1% 30% 6.2% 44.4% 41.4%
remanded remanded remanded remanded remanded
Total 18.0% 24.5% 41.8% 15.2% 23.5%
reversed reversed reversed reversed reversed
51.1% 54.3% 35.9% 60.9% 32.3%
remanded remanded remanded remanded remanded
All Issue 24.5%
Areas reversed
(1953-1991) 45.9%
remanded

 

Source: Adapted from Brisbin and Kilwein (1994), Table 1.

18

There is another, less pragmatic, reason for state supreme courts to expect U.S.
Supreme Court reversal infrequently: judicial federalism. Judicial federalism
refers to the distribution of judicial authority between the federal and state
judiciaries. Historically, the Court has cycled through several doctrinal variants of
judicial federalism, alternatively weighing more heavily in favor of national
supremacy (cooperative federalism) and states’ rights (dual federalism) (Epstein
and Walker 1998, 295-297). The ‘newjudicial federalism’ began to emerge in
the 19705, with state courts relying increasingly on state constitutions and laws to
decide cases concerning individual rights (Abrahamson and Gutman 1987).
Some members of the U.S. Supreme Court looked upon this trend with favor,
viewing it as a means to counter the perceived abandonment by the Burger Court
of aggressive protection of individual civil liberties. Justices Brennan and
Marshall, for example, urged state courts to turn to their state constitutions to
protect civil rights and liberties in their dissent in the 1975 case of Michigan v.
Mose/y.6 Meanwhile, conservatives on the contemporary Supreme Court have
articulated a decidedly pro-states’ rights stance, rejecting the treatment of states
as mere administrative units of the federal government (Epstein and Walker
1998, 339). Combined, the newjudicial federalism and the principle of dual
federalism suggest justices of every political persuasion have principled reasons

to honor state high court rulings.

19

On the other hand, the Supremacy Clause of Article VI of the United State
Constitution bestows the authority to review state court decisions on the nation’s
highest court. The Supremacy Clause reads as follows:

This Constitution, and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made, or which shall

be made, under the Authority of the United States, shall be the

supreme Law of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.
The Court has given full force to this constitutional clause through its Supremacy
Clause jurisprudence. For example, in Martin v. Hunter’s Lessee7 the Court
rejected the theory relied upon by the state of Virginia to deny the validity of a
section of the 1789 Judiciary Act. Section 25 of that Act explicitly granted the
United States Supreme Court the authority to review ﬁnal judgments of state
supreme courts when federal statutes were at question or when state statutes
were Challenged as unconstitutional under the U.S. Constitution. Several states
Characterized Section 25 as unconstitutional on the theory that the compact
among the states upon which the United States was based entitled the federal
government to limited and speciﬁed powers only. In a case concerning state
legislation regulating confiscated property, Virginia maintained that the states
were equal sovereigns with the federal government. The Supreme Court soundly

rejected this premise and, in doing so, gave deﬁnite shape to the Supremacy

Clause of Article VI of the Constitution.

Further, “Judges are persons who have undergone a legal socialization process

in which the authority of higher courts for their subordinates is an accepted value,

20

and that socialization process inevitably has a signiﬁcant effect on judges’
perspectives” (Baum 1978, 212). Empirical research suggests that the role
orientations of judges also influence judicial decision making (Gibson 1977,
1978, Howard 1981, Scheb, Bowen and Anderson 1991). “A role orientation
speciﬁes for the role occupant the range of legitimate criteria of decision making”
(Gibson 1978, 922). If the operative role orientation for a given judge
emphasizes the application of legal precedent as articulated by superior courts,
then the behavior of that judge will comport with the direction of his or her
superior; i.e., we should well expect to see a greater degree of faithfulness to the

supeﬁorcoun.

These considerations provide plausible a priori reasons both to expect that state
supreme courts will be compliant with U.S. Supreme Court decisions and,
conversely, that they will not. These contradictory expectations motivate the
present research. There are two particularly worthy reasons we should consider
whether state supreme courts are faithful to the U.S. Supreme Court an
important question to address. First, if state supreme courts do not faithfully
apply Supreme Court rulings, the role of the Supreme Court as the interpreter of
the United States Constitution is compromised. If the prescriptions of the
nation’s high court are ignored, or at best given mere lip service, by those most
immediately charged with carrying them out, how can the Supreme Court be
effective in providing authoritative judicial resolution? Clearly, it cannot. Kilwein

and Brisbin (1997) aptly summarize this point:

21

As part of the system of law, the representative polity recognizes

the need for legal guarantees of rights and equality to circumscribe

the exercise Of governmental power and protect personal

autonomy. When there is a federal judicial institutional structure,

like that found in the United States, incoherence in the practice of

law and rights threatens the modernist premise about the necessity

of predictable law (122-123).
Second, if state courts of last resort diverge consistently from the rulings of the
Supreme Court, the content (and perhaps the quality) of justice becomes
contingent on geography. The doctrine of federalism clearly preserves the
autonomy of state supreme courts in the domain of state statutory and
constitutional interpretation. Further, the Court’s ruling in Murdock v. Memphis8
and other subsequent cases explicitly endorses the concept of judicial
federalism. This notion of judicial federalism notwithstanding, Supreme Court
rulings on issues of federal constitutionality are intended to insure a minimum
level of protection from which states may deviate to afford their citizens greater
protection but not from which to erode federally guaranteed minimum protections.
The extent to which state supreme courts afford criminal defendants, for

example, lesser protections than those guaranteed by the U.S. Supreme Court,

to that extent the ideal of equal protection under the law is eroded.

Overview of the Dissertation

In this dissertation, I develop an integrated model of state supreme court decision

making that recontextualizes the inﬂuence of the United States Supreme Court.

While the great preponderance of the judicial impact literature focuses on the

22

vertical relationship between the Supreme Court and the lower court, I juxtapose
the vertical relationship between the Supreme Court and state supreme courts
with the horizontal relationships between state supreme courts and their state
political environments. The aim is to increase understanding of decision making
in state supreme courts and their relationship to the United States Supreme
Court by taking into account the institutional and political dimensions of judicial
decision making. The substantive focus for doing so is search and seizure
jurisprudence. I begin with an investigation of two elements of judicial impact:
congruence and responsiveness. Congruence refers to the extent to which the
set Of explanatory factors that account for decision making in the U.S. Supreme
Court also accounts for decision making in the state supreme courts.
Responsiveness refers to the extent to which state supreme courts modify their
decision making in response to shifts in U.S. Supreme Court preferences. I then
evaluate the responses of state supreme courts to the legal stimuli embedded in
Supreme Court automobile search and seizure decisions. I ultimately expand the
legal model into an integrated model of state supreme court decision making that
incorporates legal stimuli, judicial preferences, state context, and institutional
arrangements, demonstrating the need to look at both the vertical and the
horizontal relationships within which state supreme court decision making is

nested to understand judicial impact.

In the next chapter, I begin with an overview of judicial impact as a concept and

offer an integrated theory of judicial decision making to explain judicial impact.

23

Chapter One Notes

1 Shapiro (1981) suggests several functions of appellate courts, including
legitimization, supervision and governance or regime maintenance. Policy
enunciation falls under the last of these.

2 A trial court of limited jurisdiction handles a substantively narrow set of cases;
e.g., traffic violations, municipal code violations. Trial courts of general
jurisdiction are the major trial courts and possess the legal authority to hear all
cases not specifically delegated to the trial courts of limited jurisdiction.
Intermediate appellate courts hear all properly filed appeals. In some states,
appeals from the trial courts go directly to the intermediate appellate court, in
others, they go to the state court Of last resort who then determines which
appeals to return to the intermediate appellate court. State courts of last resort
function as the ultimate reviewing judicial body in the states, with only the United
States Supreme Court exercising formal authority over them.

3 The most common name states have adopted for their courts of last resort is
“supreme court,” however, not all states have chosen that nomenclature. For
example, Maryland’s court of last resort is the Maryland Court of Appeals while
West Virginia’s is known as the Supreme Court of Appeals. For simplicity’s sake,
“state supreme court" will be used interchangeably with “state court of last resort”
to refer generically to a state’s highest court.

4 Reliable, comparable data on case dispositions by state and by year are difﬁcult
to come by given the differences in reporting practices among state court
administrators. The National Center for State Courts compiles caseload statistics
in its State Court Caseload Statistics series. However, to do so it relies on each
state court administrator to provide the information and not every state provides
complete information.

5 Criminal procedure cases include those arising under the 4‘", 5"", 6th and 8th
Amendments as well as habeas corpus, fair trial rules and related items. Civil
rights cases include those arising under the 14th and 15th Amendments as well as
liability under federal civil rights statutes. Due process cases include noncriminal
process due process claims only.

6 423 U.S. 96 (1975).

71 Wheat. 304 (1816).

8 20 Wall. (87 U.S.) 590 (1875).

24

CHAPTER TWO

JUDICIAL IMPACT AND THE AMERICAN STATES

The Concept of Judicial Impact

At its broadest level of generalization judicial impact can be deﬁned as the
treatment of a judicial decision by other policy actors and the public. What
constitutes “other policy actors and the public” can be organized into the
interpreting population, the implementing population, the consumer population
and the secondary population (Canon and Johnson 1999). The interpreting
population consists Of those charged with refining the policy embodied in the
court’s decision; enlarging, limiting and/or adapting the content of that decision to
address subsequent cases.1 While other individuals and entities may “interpret”
a court decision, the ofﬁcial interpretation comes from lower courts. Reﬁning the
notion of judicial impact to focus on the interpreting population gives us a better

grasp on the concept.

Yet, when attention centers on judicial impact as interpretation and
implementation by lower courts, there still remains considerable ambiguity.
Resolution of this ambiguity requires specifying concrete behavioral referents.
There are two broad categories of relevant behavior: what lower courts say
about Supreme Court rulings and what lower courts do about Supreme Court

rulings.

25

What Lower Courts Say. Early work on the relationship between the Supreme
Court and lower state and federal courts assumed that compliance on the part of
lower courts with the directives of the Supreme Court was direct and unequivocal
(Reid 1988). And, a textual analysis of lower court decisions would have largely
supported this assumption. Peltason (1955) and Murphy (1959) challenged this
hierarchical model. They, and others, were inspired to rethink the traditional
notion of hierarchy by the controversial Supreme Court decisions with regard to
race relations, and the oftentimes vitriolic denunciation of those decisions not

only by the public but also by members of the lower courts (see Vines 1965).

Scholars began to examine the language of lower court rulings carefully,
considering the import of the language for the implementation of Supreme Court
decisions. Numerous scholars (e.g., Johnson 1979, Gruhl 1980, Haas 1981,
Reid 1988), have taken a doctrinal approach by analyzing the content of the
decisions of state supreme courts to assess the extent to which those decisions
take an expansive versus narrow approach to the Supreme Court decision in
question. Since outright deﬁance has been found infrequently if at all (Beatty
1972, Tarr 1977, Gruhl 1980, Songer and Sheehan 1990), scholars employing a
doctrinal analysis have generally equated broad constructions of Supreme Court

rulings with compliance.

Manwaring (1968) exempliﬁes the early empirical studies Of compliance focused

on the text of lower court decisions. His was a qualitative study that relied on

26

illustrative examples of state supreme court decisions after the Supreme Court’s
ruling in Mapp v. Ohio,2 which extended the federal exclusionary rule to state
proceedings.3 He focused primarily on California and New York as examples of
deﬁance and compliance, respectively, suggesting that California’s resistance
and New York’s acceptance of the Mapp decision were functions of their pre-
Mapp histories. The California Supreme Court had already adopted the
exclusionary rule in its 1955 decision People v. Cahan.4 The California courts,
therefore, had several years to develop their own precedents regarding the
acceptable parameters Of searches and seizures and, thus, were
“understandably reluctant to the belated judicial intervention from Washington”
(Manwaring 1968, 14). In contrast, New York had not only not adopted an

exclusionary rule before Mapp, it had explicitly rejected it in People v. Defore.5

Canon (1973) also illustrates the textual (or doctrinal) analysis approach. He,
too, focused on the manner in which state supreme courts interpreted and
applied the Supreme Court’s ruling in Mapp. Canon developed a set of common
legal questions arising from the Mapp decision; in particular, “questions [that]
were seemingly left unsettled or ambiguous by the Supreme Court (at least for
some years)” (114).6 A decision by the lower courts in which evidence was
excluded was considered “within the spirit or thrust of Mapp.” Ultimately, Canon
uncovered evidence of regional patterns in response to Mapp but offered no
satisfactory explanation for these observed regional patterns other than to

attribute them to “regional politico-legal culture difference” (129).

27

Romans (1974) shifted focus to a different set of Supreme Court rulings while
remaining concerned with the Court’s impact in the area Of criminal procedure as
evaluated on the basis of state supreme court decisions. Specifically, he
considered state supreme court response to the Escobedo7 and Miranda8
rulings.9 He Operationalized state court response in terms Of liberalism based on
their decisions regarding the admissibility of confessions in the pre-Escobedo,
post-Escobedo and post-Miranda periods. While courts were largely
nonresponsive to the vague Escobedo ruling, there was widespread acceptance,
though narrow in application, of the Miranda ruling. He found that courts that had
already adopted liberal policies regarding confessions prior to Miranda were
more resistant to a broad reading of Miranda than were those with more

conservative pre-Miranda rulings.

A more recent example of the doctrinal approach to the study of judicial impact is
the study by Kilwein and Brisbin (1997) of the application of the intensiﬁed
scrutiny doctrine by state supreme courts. lntensified scrutiny is “a set of speciﬁc
legal doctrines or judicial policies for the evaluation of rights and equal protection
claims, especially the legitimacy of claims of federal rights and equal protection
of the laws by disadvantaged groups and other rights Claimants” (Kilwein and
Brisbin 1997, 126). One variant of intensiﬁed scrutiny, strict scrutiny, requires the
establishment of a compelling governmental interest to impose most racial and

ethnic classiﬁcations. Another, intermediate scrutiny, requires a classiﬁcation

28

scheme based on gender or the status of people born out of wedlock to serve an

important or substantial governmental interest.

Kilwein and Brisbin differentiate among policy convergence (application of the
same standard as employed by the U.S. Supreme Court), expansive divergence
(application of a higher standard than employed by the U.S. Supreme Court) and
limiting divergence (application of a lower standard than employed by the U.S.
Supreme Court) on the basis Of the state supreme court opinions. In each case,
they ﬁnd the explanation for the observed pattern of behavior is both political and
institutional. When there is an alignment in preferences between a state
supreme court and the U.S. Supreme Court, convergence is more likely, as it is
when the Supreme Court asserts institutional supremacy. On the other hand, in
the absence of a federal doctrinal exemplar and in the context of insularity from
political pressures to the contrary, state courts are inclined to expansive
divergence and inclined to limiting divergence when their preferences are at odds

with those of the Supreme Court justices.

The common thread in doctrinal analysis is the focus on opinion language.
Whether the approach is strictly a qualitative assessment of legal language and
the development of legal principles (e.g., Canon 1973) or applies a quantitative
analysis to qualitative outcomes (e.g., Kilwein and Brisbin 1997), the ultimate

concern is with What lower courts say in the text Of their Opinions.

29

The shortcoming of doctrinal analysis stems from the nature of decision making
on collegial courts and the process of crafting opinions. Collegial courts decide
cases on majoritarlan principles. Individual judges are free to vote as they see
ﬁt. The opinion that garners the majority of adherents on the court becomes the
majority opinion and both resolves the dispute at hand as well as articulates the
more general principle of law.10 Even judges who agree with the resolution of the
particular dispute, may not agree, however, with the principle of law that is
articulated or the relevancy of previous cases. In such cases, they are free to
write a concurring opinion expressing the legal principle they contend is
controlling. While opinion writers are certainly cognizant of precedents relevant
to the case at hand, they have signiﬁcant latitude in incorporating precedents into
their decisions.

Because precedents lie on both sides of appellate court

controversies, stare decisis [adherence to previous decisions]

provides no sure guide to decision. A court will choose those

precedents that support the majority’s contention, while

disregarding or disparaging those to the contrary. The most

irrefutable evidence that this is the case may readily be had by

simply consulting a decision that contains a dissenting as well as a

majority Opinion. Both will likely contain a roughly equivalent

number of citations to previously decided cases (Spaeth 1995,

302)
Even when precedent may appear to be especially restrictive, judges have a
variety of tools at their disposal to circumvent it (Segal and Spaeth 1993, 49-50).
They may declare the “controlling” portions of previous Opinions to be no more

than surplus verbiage and, therefore, inapplicable in the present case.

Alternatively, they may distinguish the present case from the precedential case

30

on the basis of differing factual situations involved. As Baum (1978) has
articulated it,

Expressions of deference to the Supreme Court may reﬂect verbal

commitment to the myth of the authority of higher courts rather than

true acceptance Of that authority. The capacity of lower-court

judges to reconcile obedience to higher courts with evasion of their

commands through the device of distinguishing precedents is well

known to observers of the judiciary. As one rebellious judge said of

Supreme Court decisions. ‘We follow them when we can’t get

around them’ (212).
Or, they may limit a precedent by qualifying its holding. In sum, there are a
variety of techniques available for circumventing prior authoritative rulings.
LaRue (1995) goes so far as to suggest that "the proud towers of the law are built
not on the level bedrock of ‘fact’ but on the perplexed terrain of ‘ﬁction,’ [and] that
judicial opinions are ﬁlled with ‘stories’ that purport to be ‘factual’ but instead are

‘ﬁctions’ . . . ." (8).

The opinions rendered by courts are linguistic reconstruction of facts.

Analysis of any instance of the resolution of political conflict through

agreement upon a verbal formula justifying an action reveals the

same process of reconstruction of facts through ambiguity,

highlighting of some aspects of the situation and concealment of

others, substitution of part of it for the whole, and the subtle

evocation of what people want to see (Edelman 1977, 38).
Appellate court decisions represent the resolution Of political conflict and the
principles enunciated in those decisions provide the rationalization for the end
result; that is, the “verbal formula justifying an action.” The essential point is not

that prior decisions and the law are inconsequential for the disposition of cases.

31

Rather, the point is that judges have a degree of discretion in crafting legal

opinions that enables them to rationalize most, if not all, outcomes.

What Lower Courts Do. Baum (1977) has suggested that a broader notion of
impact than doctrinal compliance is more useful. He advises students of judicial
impact to think in terms of the effect of Supreme Court rulings on the decisional
trends of lower courts. “The impact of the Court in this framework may be
conceived of as the extent to which policy changes announced by the Supreme
Court produce changes in the outcomes of cases decided by the lower courts”
(Songer and Sheehan 1990). Supreme Court rulings are, in effect, stimuli to

which state supreme courts react in arriving at case outcomes.

Songer, Segal and Cameron (1994) provide a useful distinction between two
types of judicial impact qua outcome: congruence and responsiveness.
“[Cjongruence" implies that an appeals court and the Supreme
Court decide a case the same way, given the facts of the case.
“Responsiveness” implies that as the Supreme Court modiﬁes its
preferred doctrine, the appeals court modifies its doctrine in the
same direction (Songer et al. 1994, 675).
Lower court decision making is congruent with Supreme Court decision making if
the Observed pattern of decision making in the lower court mirrors that of the
Supreme Court. In other words, if the factors important in determining case
outcomes in the U.S. Supreme Court are also those that are important — and

important in the same way — in the state court of last resort, then the latter is

congruent with the former. Responsiveness is more dynamic in that it refers to

32

the degree to which a lower court tracks changes in the decision making of its
superior over time. Songer, Segal and Cameron offer the following analogy:

The relationship is in some ways like that of persons walking their

dogs. The dog on a leash is free to lead or follow the owner. The

dog’s position is not congruent with that of the owner, but the

degree of incongruity is limited by the length Of the leash selected

by the owner. And when the owner changes direction and pulls on

the leash, the dog follows (it is responsive to changes in the

owner’s position) (1994, 674-675).
Songer and Sheehan (1990) represent a synthesis of doctrinal and outcome-
based judicial impact. They examined the response of the Courts of Appeals to
the Supreme Court’s rulings in Miranda and New York Times v. Sullivan.11 When
examining the extent of compliance, deﬁned as “whether the decisions in the
courts below fulfill the legal obligation imposed by the Supreme Court and
whether they accept and correctly apply the interpretations of law announced by
the Supreme Court” (301 ), Songer and Sheehan found high levels of full
compliance in both areas. Interestingly, though they uncovered a change in
decisional trends in the Courts of Appeals due to the New York Times ruling, they
did not ﬁnd a statistically significant change in the decisional trend for Miranda
cases. These relationships remained unchanged even with the introduction of
controls for partisanship of the Courts of Appeals bench and holdover versus
new judges. They conclude,

Even while following the interpretations of law set down by the

Supreme Court, there are abundant opportunities for lower court

judges to deal creatively with the facts of individual cases to

produce outcomes which may be identical to those they would have
reached before the Supreme Court changed the law (313).

33

Their ﬁndings underscore the need to think carefully about how judicial impact is
conceptualized, as that choice can have a great deal to do with what ﬁndings
ultimately emerge. Looking at what courts say they are doing in the text of their
opinions and looking at what they are actually doing in terms of case outcomes
may well lead to differing conclusions, with doctrinal analysis overlooking
instances Of noncompliance which are characterized by the lower court as

compliance.

In this dissertation, attention centers on decision outcomes rather than doctrinal
compliance. This choice is predicated on the idea that what ultimately matters is
what courts do more so than what courts say. While the text of court opinions is
not merely so much irrelevant verbiage, the Supreme Court develops policy via
decisional trends and cannot be said to influence lower courts if these trends are

inconsequential for lower court decision making.

Discretion and State Supreme Courts

Lower courts are privy to a variety of sources of latitude and discretion that
enable them to diverge, if they so choose, from the direction of the Supreme
Court, state supreme courts in particular (e.g., Vines 1963, Dolbeare 1967).
Scholars have suggested that lower courts have little to fear in the way of
Supreme Court control and little incentive to follow the lead of the Supreme Court
if doing so is contrary to their interests. Further, they have argued that this

maneuverability is a function of two things (Gruhl 1980). First, the United States

34

Supreme Court cannot possibly establish comprehensive, guiding policy on every
issue lower courts face given the comparatively few cases it hears. And, second,
the United States Supreme Court is not in a position to systematically monitor
lower court decisions, also due to its docket size. Not only do lower courts by
necessity have to develop policy to bridge the gaps left unﬁlled by the Supreme
Court, even when the Supreme Court has enunciated policy, lower courts have
little reason to fear that any evasion on their part will be detected much less

sanctioned.

In contrast, the lower federal courts are more directly under the supervision of the
U.S. Supreme Court than are the state courts. This may be especially true when
considering the federal intermediate appellate courts, given their proximal
position in the judicial hierarchy directly below the U.S. Supreme Court and their
purported greater level of judicial professionalism (Murphy 1959, Canon 1973,
Gruhl 1980). This has led at least some scholars to postulate that the Supreme
Court’s decisions will be more inﬂuential on decision making in the former than in
the latter (e.g., Haas 1982, but, see Vines 1965, Beiser1968, Grunbaum and
Wenner 1980). Haas’s (1982) comparative study of Courts of Appeals and state
supreme court treatment of Supreme Court rulings in the area of prisoners’ rights
supports the notion of state supreme courts having greater latitude than their
federal counterparts.12 Using doctrinal analysis of the lower courts’ treatment of
various legal questions left unsettled by the Supreme Court in the area of

prisoners’ rights, Haas found a greater Supreme Court effect on the Courts of

35

Appeals both in terms of its agenda and its outcomes. That is, he found more
prisoners’ rights cases were heard by the Courts of Appeals than by the state

supreme courts and more were decided in a pro-prisoner direction.

Perhaps more than the relative position Of the Courts of Appeals in the American
judicial hierarchy, the milieu within which state supreme courts operate provides
ample reason to expect less faithfulness on the part of state supreme courts than
manifested in the lower federal courts. Simply put, while a focus on the vertical
relationship between the Supreme Court and the lower federal courts makes
sense in light of the fact that they are operating within a single legal code as part
of a unified judicial system (Benesh 1997, Reddick1997), such a singular focus
in studying state supreme courts is untenable given the array of local forces with
which state supreme courts must contend. State supreme courts are not only
part of the American judicial system, they are constituent parts of individual state
political systems. Ignoring the horizontal relationships (with other state political
actors and electoral constituents) when studying the vertical relationship (with the
U.S. Supreme Court) is perilous at best. Focusing on the goals of judicial
decision makers and utilizing new institutionalism provides an efﬁcacious vehicle
for organizing and understanding the conditioning role of state context in state

supreme court decision making.

36

Goals, Attitudes, Strategies and Institutions

Goals are “the ends that people seek to realize” (Baum 1997, 11). The concept
of goals is very broad so it is useful to differentiate between inherent and
operative goals (Baum 1997, 13-15). Inherent goals are merely the set of
objectives individuals would like to achieve. Not all inherent goals, however, are
likely to affect the behavior of individuals. Those that do have behavioral
consequences constitute an individual’s set of operative goals. While inherent

goals have the potential for inﬂuencing behavior, only operative goals actually do.

The operative goal that undoubtedly receives the greatest attention in the judicial
literature is the policy preference of the decision maker, which is the central
concept in the attitudinal model of judicial decision making. The attitudinal
model, in its most basic formulation, “holds that the Supreme Court decides
disputes in light of the facts of the case vis-a-vis the ideological attitudes and
values Of the justices” (Segal and Spaeth 1993, 65). The attitudinal model had
its origins in the legal realist movement, a movement that arose in response to
the forrnalistic jurisprudence of the 19205, which viewed judicial decision making
as rote application of relevant law to the disposition of cases (Segal and Spaeth
1993,65). One version of this formalistic jurisprudence is the legal model. The
legal model depicts judges and courts as resolving “disputes before it in light of
the facts of the case vis-a-vis precedent, the plain meaning of the Constitution

and statutes, the intent of the framers, a balancing of societal versus

37

constitutional interests” (Segal and Spaeth 1993, 64). In contradistinction to the
legal model, one proponent of the legal realist movement, Jerome Frank, offered
the following description of the law

. . . [T]he popular notion of the possibilities of legal exactness is

based on a misconception. The law always has been, is now, and

will ever continue to be, largely vague and variable. And how could

this be otherwise? The law deals with human relations in their most

complicated aspects. The whole confused helter-skelter of life

parades before it — more confused than ever, in our kaleidoscope

age (Frank 1949, 6).
Works by Pritchett (1948) and Schubert (1965, 1974) drew on the groundwork
laid by the legal realists and uncovered empirical regularities underlying judicial
decision making on the U.S. Supreme Court. Rohde and Spaeth (1976) offered a
variation of the attitudinal model focused on policy goals. Speciﬁcally, they
contend:

The primary goals of Supreme Court justices in the decision-

making process are policy goals. Each member of the Court has

preferences concerning the policy questions faced by the Court,

and when the justices make decisions they want the outcomes to

approximate as nearly as possible those policy preferences (72).
Segal and Spaeth (1993) subsequently elaborated on the attitudinal model,
amassing and arraying an impressive amount of evidence in its support, and

reinvigorating debate in the judicial politics subﬁeld in the process.

The primary of attitudes in decision making at the U.S. Supreme Court level has
been well established. Supreme Court justices votes sincerely (that is, in
accordance with their policy preferences) because they can. But even the

primary architects of the attitudinal model recognize the importance of particular

38

institutional features of the Court that allow for this (Segal and Spaeth 1993, 69-
72). As Baum states, “The translation of inherent into operative goal orientations
is a product of the court situations in which judges work” (1997, 14). The lack of
electoral or political accountability, progressive ambition, and the like enables
justices of the U.S. Supreme Court to act directly to further their policy goals.
The institutional context within which they operate facilitates the translation of

inherent into operative goals, attitudes into actions.

New institutionalism provides a useful tool for understanding the conditions
governing the transformation of inherent into operative goals in the context of
state supreme courts. New institutionalism, also knows as neo-institutionalism,
represents the reintroduction of institutions into political analysis in response to
the reductionism of post-World War II behavioralism. While pre-behavioral
approaches to the study of politics concentrated on formal and legalistic
descriptions of institutions and treated them as almost organic entities unto
themselves, the behavioral revolution redirected study to the individual level. In
the process, however, institutions were treated as irrelevant in much political
science theory and research. A renewed interest in institutions emerged in the
19803 and occurred simultaneously in several subfields (Weingast 1996). This
interest had a dual emphasis: on the source of institutional variation and on the

consequences of this variation for political behavior.

39

While there is more than one analytically distinct neo-institutional approach,13 the
one most commonly used in the study of judicial behavior is rational Choice new
institutionalism. Its hallmark is in “providing the micro-foundations of institutional
analysis” (Weingast 1996, 167). In other words, rational choice institutionalism,
by identifying a set of assumptions governing human behavior (i.e., strategic goal
maximization), allows us to link macro phenomena (like the decisions of courts)
to micro phenomena (like the decisions of judges). The distinctive features of
rational choice institutionalism include the assumptions “that the relevant actors
have a ﬁxed set of preferences[,] . . . behave entirely instrumentally so as to
maximize the attainment of these preferences, and do so in a highly strategic
manner that presumes extensive calculations” (Hall and Taylor 1996, 944-945).

Neo-institutionalism . . . devotes particular attention to how

institutional arrangements shape purposive action. The neo-

institutional perspective views decisional outcomes as not merely

the collective expression of individual preferences or the result of

structural characteristics of institutions, but rather as a complex

interaction of values and structures (Brace and Hall 1990).
The utility of new institutionalism is that it directs our attention to those
characteristics of institutions that are likely to have behavioral consequences.
With rare exceptions, both justices of the U.S. Supreme Court and members of
state supreme courts wish to remain in ofﬁce; i.e., they share the inherent goal of
seat retention. However, while Supreme Court justices are safely, and virtually

permanently, ensconced in their judicial ofﬁces, state supreme court judges

cannot necessarily say the same thing.

40

Consider, for example, the behavioral implications of the manner in which
members of state high court benches are selected.

Local political pressure on the state court creates an incentive for

its judges to refuse to converge with U.S. Supreme Court doctrine

akin to the inﬂuence of clients on a bureaucratic agent. Since the

legal process is structured to minimize or obscure direct local

political pressure on the state court, state political pressure on

courts is most visible during judicial selection. The state’s method

of judicial selection thus can bind or isolate a state court from mass

and organized partisan political demands in the state (Kilwein and

Brisbin 1997, 133).
Given that members of state high court benches wish to remain in ofﬁce, all
things being equal, those who are retained in ofﬁce via election mechanisms
have a greater incentive to avoid making judicial decisions that are unpopular
with the state electorate. A simple game tree is a useful heuristic for illustrating
this point and is depicted in Figure 2.1. For simplicity’s sake, assume that
certiorari has already been granted (i.e., the case has been placed on the state
supreme court’s docket). The state supreme court must decide whether to afﬁrm
or reverse the lower court ruling. If the lower court ruling conﬂicts with the
preferences of the state supreme court, in the absence of other inﬂuences, we
would expect the lower court ruling to be overturned, yielding a ﬁnal decision in
line with the preferences of the state supreme court majority. But, the retention
of members of a state supreme court bench via popular elections introduces a
potential conditioning factor on the direct expression of the court majority’s
preferences. If the state electorate’s preferences and those of the state supreme

court majority are in harmony, the state supreme court majority can decide the

case in accordance with its preferences, without fearing electoral reprisal. If,

41

however, the sincere preferences of the state supreme court majority are at odds
with the preferences of the electorate, court majorities fearing reprisal have an
incentive to decide the case with an eye toward avoiding the ire of the electorate,

even if that is contrary to the preferred outcome of the court majority.

In our hypothetical situation, the expected payoff for the state supreme court
majority if the lower court is upheld (contrary to the sincere preferences of the
court majority) is set at -1.0. The payoff for reversing the lower court (despite the
fact that the lower court decision accords with the preferences of the electorate)
is contingent on what the electorate does. If the state supreme court overturns
the lower court and in the process incurs electoral reprisals, the cost for
invalidating is assumed to be even greater than if the state supreme court simply
afﬁrrned the lower court ruling in the first place. This assumption is based on the
premise that subsequent sanction hurts the members of the state supreme court
even more so because of its repercussions; e.g., if members of the state
supreme court are removed from the bench, they lose the opportunity to move
policy closer to their preferred positions in future cases. Assume the payoff in
this case is -1.5. The most preferred result for the supreme court majority is for
the lower court to be overturned with no electoral reprisal, with an assumed

payoff of +1.0.

The ﬁnal expected utility for overturning versus upholding the search depends

not only on the payoffs associated with each possible scenario but also on the

42

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likelihood of their occurrence. In other words, the payoff to the state supreme
court majority for overturning the lower court depends on the likelihood of
electoral sanction. In Figure 2.1, the likelihood of sanction in the event of
overturning is assumed to be low. Based on the probabilities associated with the
likelihood of electoral sanction, the expected utility for overturning the lower court
is +0.75. Thus, the state supreme court is better off going ahead and voting

sincerely to overturn the lower court.

Figure 2.2 illustrates the situation in which the probability for electoral sanction is
assumed to be high. With the same payoffs associated with each alternative as
in Figure 2.1, the expected utility for overturning the lower court is -1.25 as
compared to the expected utility for affirming the lower court of -1.0. The costs of
overturning, in this case, exceed the costs of upholding the lower court. Under
these conditions, then, the expectation is that the state supreme court will vote to
uphold the lower court decision, contrary to the sincere preferences of the

majority of the state court bench.

If judicial retention is not dependent upon popular election, but instead a
gubernatorial or legislative prerogative, there is little reason to expect the court
decision to be contingent on the preferences of the state electorate. Of course,
judges are no less members of their respective communities simply because of
their identities as judges. And, as members of their respective communities, they

have likely internalized and reflect the values of those communities. Coincident

45

preferences between the electorate and the state court bench differs, however,

from the latter being inﬂuenced by the former.

When the members of a state court bench are selected through gubernatorial or
legislative appointment rather than via an electoral mechanism the game
presented in Figures 2.1 and 2.2, of course, would not take the same form. The
expected payoffs would be, in part, a function of the likelihood of retention
sanction by the governor and/or legislator. Figures 2.1 and 2.2 do, however,
illustrate the potential effect of institutional structure (e.g., method of retention)

and context (e.g., electorate preferences) on behavior (e.g., judicial decision).

The new institutional thesis is amply supported in the empirical judicial behavior
scholarship. For example, several studies have found that the presence of one
institutional feature, an intermediate appellate court, enhances dissent rates on
state supreme courts (e.g., Canon and Jaros 1970, Glick and Pruet 1986, Hall
and Brace 1989, Sheldon 1999). Other studies have uncovered persuasive
evidence to suggest that another institutional feature, selection via popular
election, conditions the votes of at least some judges under at least some
circumstances. Hall (1987), for example, on the basis of her case study of the
Louisiana Supreme Court, ﬁnds,

Justices who ﬁnd themselves in the court minority, who perceive

themselves to have strong ambitions to retain their positions and

fear electoral challenge, may be extremely hesitant to voice

disagreement [via dissenting behavior] with the court’s decision on
highly controversial issues of public policy (1123).

46

In a subsequent comparative study of death penalty decision making in four state
courts of last resort, Hall (1992) ﬁnds further evidence of electoral concerns

inducing strategic behavior.

New institutionalism has been especially fruitful in studying judicial review cases
(Emmert 1992, Brace, Hall and Langer 1997, 1998, Langer 1997). When courts
review statutes to determine their constitutionality they are engaging in judicial
review. When state supreme courts invalidate state statutes, they are explicitly
taking on the more traditional policy actors (the legislature, the governor) and
partaking of the countermajoritarian function; that is, they are acting in
contradistinction to the will of the prevailing political coalition. Scholars have
provided compelling evidence that the propensity of state supreme courts to
engage in judicial review is meaningfully conditioned by such institutional
features as lifetime tenure, the presence of an intermediate appellate court, and

method of judicial selection (Brace, Hall and Langer1996, 1997, Langer1997).

The lesson to be drawn is that institutional features matter. They may serve to

facilitate or to constrain the free expression of political preference, but they are

not neutral.

47

An Institutional Theory of Judicial Impact

The extraordinary analytic advantages that attend to the use of a rational choice
perspective and the adoption of a new institutional framework have not been fully
realized in the study of judicial impact. To be sure, the notion of goals (both of
superior and inferior judges) is present in much of the judicial impact literature.
However, there is little attention paid to context in shaping compliance with the
U.S. Supreme Court. And, while there are those who have studied judicial
impact with an eye toward institutional effects, they have either investigated only
gross differences between state and federal courts (e.g., Haas 1982) or chosen
to investigate courts with relatively homogenous institutional arrangements (e.g.,
Songer and Sheehan 1990, Songer, Segal and Cameron 1994, Benesh 1997,
Benesh and Reddick 1998). In this dissertation, I offer an institutional theory of
judicial impact; an integrative theory that synthesizes elements of the legal,
contextual and institutional environment within which courts operate. In doing so,
I am heeding the calls for integrated models scholars have made with increasing
frequency (George and Epstein 1992, Hall and Brace 1992, Traut and Emmert

1998)

The institutional theory of judicial impact articulated here begins with the basic
premise that judges are purposive actors with multiple policy goals. Of the set of
inherent goals judges possess, two are of primary importance: inﬂuencing policy

and remaining in office.14 The translation of these inherent goals into operative

48

goals (that is, goals with behavioral manifestations) is a function of the political
context and institutional arrangements within which judges operate. The
relevance of policy and seat retention goals remains in effect when lower court
judges process cases that call upon them to apply principles of law as articulated
by the U.S. Supreme Court. Thus, state supreme courts are likely to be resistant
to following the lead of the U.S. Supreme Court when to do so would conﬂict with
the policy preferences of the decision-making majority. Further, resistance
should also be expected when faithfulness to the U.S. Supreme Court is likely to
incur retaliation in the seat retention process. In other words, if the preferences
of those with sanctioning power in the state (the electorate or policy elites)
diverge from those embedded in the decisions of U.S. Supreme Court decisions,
state supreme court judges have an incentive to resist adhering to U.S. Supreme
Court policy. Alternatively, state supreme court decision-making majorities may
be faithful to the U.S. Supreme Court in rendering their decisions, even if the
preferences of the two are misaligned, if those state actors with sanctioning

power have preferences that harmonize with those of the U.S. Supreme Court.

Stated succinctly, l theorize that the extent to which state supreme court
decisions echo the principles of law reﬂected in U.S. Supreme Court decisions
will be conditioned by the political and institutional context. This represents an
integrative theory of judicial impact that takes the accepted knowledge that there
is a multiplicity of factors at play in judicial decision making and applies that

directly to the study of judicial impact. It rests squarely on the tenets of rational

49

choice and juxtaposes the vertical relationship between the U.S. Supreme Court
and state courts of last resort with the horizontal relationships between state

supreme courts and their environments.

50

Chapter Two Notes

1 The implementing population is Charged with putting the court decision into
effect; e.g., school administrators and ofﬁcials charged with giving effect to the
Court’s desegregation decisions. The consumer population consists Of those
who are more directly effected by the court decision; e.g., students affected by
the desegregation decisions. The secondary population comprises those who
are peripherally concerned with the court decision; e.g., members Of the media
covering school desegregation.

2 367 U.S. 643 (1961).

3 The exclusionary rule was articulated in the 1914 case of Weeks v. United
States (232 U.S. 383). The essence of the exclusionary rule is that evidence
obtained in violation of a criminal defendant’s constitutional rights cannot be used
against him in the prosecution of the criminal charges. The decision in Weeks
applied the exclusionary rule to federal prosecutions only.

4 282 P. 2d 905 (1955).
5150 NE. 585 (1926).

6 For example, “Does failure of the defendant to make a timely motion for
suppression of illegally seized evidence (usually a pre-trial motion) waive his right
to invoke the exclusionary rule later?”

7 Escobedo v. Illinois 378 U.S. 438 (1964).
8 Miranda v. Arizona 384 U.S. 436 (1966).

9 The Escobedo case rendered confessions made after the denial of counsel
inadmissible while the Miranda case homogenized state and federal standard for
the voluntariness of confessions, giving us the well-known Miranda warnings: the
right to remain silent, an explanation that anything said can and will be used
against the defendant, the right to consult with an attorney, an explanation that
an attorney will be appointed if the defendant is unable to secure one on his own
and the right to remain silent.

'0 In the event that no Opinion secures a majority of the participating judges, the
opinion securing the greatest number of participating judges is known as the
plurality opinion rather than the majority opinion.

“ 376 U.S. 254 (1964).

‘2 Prisoners’ rights cases delineate the permissibility of restrictions on the rights
of incarcerated persons.

51

'3 New institutionalism is typically parsed into three variants: historical
institutionalism, rational choice institutionalism and sociological institutionalism.
Historical institutionalism emphasizes the importance of prior institutional design
choices for understanding decision making. Rational choice institutionalism is
concerned with the structuring of purposive action on the part of goal-maximizing
actors operating within particular institutions. Sociological institutionalism takes
as its focus the ways in which goals themselves can be shaped by institutions
and the cultural contexts within which they are situated. For informative
overviews, see Koelble 1995, Hall and Taylor 1996 and Rothstein 1996.

'4 There are Obviously other important goals judges may have. Progressive
ambition, for example, has been identiﬁed as a potentially important goal for
some judges (Baum 1994, Hall and Brace 1999). Arguably, the goal of seat
retention subsumes the goal of progressive ambition, however, in that being
removed from ofﬁce is undoubtedly a liability in the pursuit of higher ofﬁce.

52

CHAPTER THREE
CONGRUENCE AND RESPONSIVENESS:
THE CASE OF STATE SUPREME COURTS

I begin this study of judicial impact with an assessment of the extent to which
state supreme courts in general are or are not faithful, as reflected in their
actions, to the policy prescriptions embedded in U.S. Supreme Court decision
making. While there has been a great deal of speculation as to the extent of
compliance on the part of state supreme courts, there are only a very few
systematic, cross-state comparisons (Tarr 1977, Songer 2000). As a result, we
know little about the general nature of state supreme court faithfulness. To
address this deficiency, I adapt the strategy employed by Songer, Segal and
Cameron (1994) in their study of federal courts of appeals-U.S. Supreme Court
relations and apply it in the context of state supreme court decision making to

evaluate two dimensions of judicial impact: congruence and responsiveness.

Congruence and Responsiveness

Songer, Segal and Cameron (1994) were interested in understanding the
hierarchical relationship between the U.S. Supreme Court and the U.S. Courts of
Appeals. To do so, they examined search and seizure decision making on both
courts, comparing the effects of different key factual elements in search and

seizure cases using the search and seizure fact pattern identiﬁed by Segal

53

(1984, 1986). Fact pattern analysis is based on the assumption that differences
in the factual characteristics attached to specific cases are associated with
differences in how those cases are resolved. One of the earliest fact pattern
analysts described it as follows: . . [l]t is possible to take some decided cases,
to identify factual elements that inﬂuenced the decisions, to derive numerical
values for these elements by using a formula, and then to predict correctly the
decisions of the remaining cases in the area speciﬁed” (Kort 1957, 1). The idea
is to identify speciﬁc factual Characteristics of a given sort of case, each of which
is associated, positively or negatively, with speciﬁed outcomes in that sort of
case. This set of characteristics, referred to as the fact pattern, can then be used

to predict decision making in that same area of jurisprudence in future cases.

Based on his review of Supreme Court search and seizure jurisprudence, Segal
had earlier identiﬁed twelve case characteristics with strong a priori credentials
as dispositive of search and seizure cases, which are listed in Table 3.1. In
doing so, Segal considered the reasonableness of a search, focusing on the
nature of the search (location, extent), the prior justification for the search and
exceptions to the probable cause and warrant requirements of the 4th
Amendment. With regard to the locus of the search, Segal ordered searches on
the basis of the extent to which there is an expectation of privacy. Thus,
searches of a person are least likely to be upheld, followed by searches of
homes, searches of commercial premises and searches of automobiles, with all

such searches less likely to be upheld than searches of public spaces, in which

54

Table 3.1

Segal’s Search and Seizure Fact Pattern

 

Condition

Expected Effect on the Likelihood of a
Challenged Search or Seizure Being
Upheld

 

Search of a Home
Search of a Business
Search of a Person
Search of an Automobile

Search Full Body Search Rather
than Stop and Frisk Search

Search Conducted with Warrant

Search Conducted on the Basis
of Probable Cause

Search Incident to Lawful Arrest
Search After Lawful Arrest
Search After Unlawful Arrest

Search Falls Under One of the
Recognized Exceptions to the
Warrant Requirementa

Increased Conservatism of U.S.
Supreme Courtb

I

<—<——<—<—

——)—>

T
T

no expectation

T

 

T = increases likelihood of upholding challenged search and seizure
I = decreases likelihood of upholding challenged search and seizure

a Exceptions to the warrant requirement are: 1) search or seizure after hot
pursuit, 2) search or seizure at a ﬁxed or functional border, 3) search or seizure
statutorily allowed pursuant to legislative authority to regulate business, 4) seized
evidence used solely for administrative or grand jury hearings, 5) seized
evidence in plain view, 6) search with permission of defendant or cohabitant.

b U.S. Supreme Court change is measured by Segal (1984) as follows: 0 =
Warren Court, 1 = after Burger appointment, 2 = after Blackmun appointment, 3 =
after Rehnquist and Powell appointments, 4 = after Stevens appointment .

55

no right to privacy inheres. Relatedly, stop and frisk searches, in which an officer
runs his or her hands over the outside of a suspect’s clothing to insure there are
no weapons, are more likely to be upheld given their less intrusive nature than

are full body searches.

Prior justiﬁcation for a search relates to the probable cause and warrant
requirements of the 4th Amendment. The 4th Amendment speciﬁcally requires
authorities to have probable cause for conducting a search and a warrant, which
is backed by probable cause, describing the place to be searched and things to
be seized. A search conducted on the basis of probable cause is more likely,
ceteris paribus, to be upheld than one lacking a probable cause foundation.
Recognizing probable cause is a subjective (judicial) determination, however,
searches conducted under the aegis of a search warrant are more likely to meet
the probable cause standard than are those conducted without a warrant. Most
challenged searches brought before the Court were conducted without a warrant
(Segal 1984, 893), however, necessitating the articulation of acceptable

exceptions to the probable cause and warrant requirements.

These exceptions have included the right of law enforcement to conduct a
warrantless search incident to a lawful arrest. What constitutes a search
“incident” to a lawful arrest is subject to interpretation but, generally speaking,
refers to an arrest that occurs prior but close to a lawful arrest. Depending upon

the Supreme Court majority, a warrantless search conducted after (but not

56

incident to) a lawful arrest also constitutes an exception to the warrant
requirement. Finally, “[a]n unlawful arrest cannot add to the reasonableness of a
search, but it does not necessarily make the search any more unreasonable
unless it was dependent on that arrest” (Segal 1984, 893). In short, both
searches incident to a lawful arrest and after a lawful arrest are more likely to be
upheld than those involving no arrest, while searches conducted after an
unlawful arrest are no more or less likely to be upheld than searches involving no

arrest whatsoever.

The Court has also recognized a set of situational exceptions to the warrant
requirement. These include: hot pursuit, ﬁxed or functional borders, pursuant to
legislative authority to regulate business, solely for administrative or grand jury
hearings, permission, and plain view. The hot pursuit exception allows law
enforcement ofﬁcers to conduct searches and seize evidence if they are
immediately engaged in the pursuit of a suspect committing or having just
committed a crime.1 The exception relating to ﬁxed and functional borders
permits ofﬁcials to inspect incoming international mail and conduct searches of
persons and vehicles at American national boundaries.2 The “functional” border
part of the exception allows, for example, mail inspectors in New York City to
open international mail without a warrant (with reasonable cause) and customs
ofﬁcials in the Detroit airport to search international passengers and their

baggage.

57

Another exception, the exception for searches and seizures pursuant to
legislative authority to regulate business, covers such things as health inspectors
inspecting public restaurants for health code violations and ﬁre inspectors
inspecting theatres for ﬁre code violations.3 The exception for searches for
evidence used solely for administrative hearings allows caseworkers to conduct
home visits of social services clients,4 while the exception for searches for
evidence used solely for grand jury proceedings denies individuals the right to
refuse to testify before a grand jury based on the claim that the evidence he or
she is to be questioned about was seized illegally.5 The exception based on
permission attaches both to searches undertaken with the permission of the
defendant6 and with the permission of a cohabitant.7 Finally, the plain view

exception permits the use of evidence seized in plain view.8

Segal applied his fact pattern to both decision outcomes of the Court as a whole
and to individual justice decision making and found it to be an excellent vehicle
for understanding decision making in this area. Using this same set of case
facts, Songer, Segal and Cameron (1994) compared the search and seizure fact
pattern’s performance in the U.S. Supreme Court with its performance in U.S.
Courts of Appeals to assess congruence. They also included a measure of the
increasing conservatism of the Supreme Court in their model of circuit court
search and seizure decision making, to ascertain if appeals court search and
seizure decision making became more conservative as the Supreme Court

moved in a more conservative direction (and, thus, was responsive to the

58

Supreme Court). As Segal (1984) had empirically demonstrated previously, as
the Supreme Court has become more conservative it has become increasingly
likely to uphold a challenged search or seizure. This empirical regularity reﬂects
the liberal-conservative dimension scholars have found to underlie decision
making in criminal cases more generally (e.g., Brace and Hall 1993, Segal and

Spaeth 1993, Emmert and Traut 1994, Benesh 1997).

Note that the concepts of congruence and responsiveness are not mutually
exclusive. Lower court decision making is congruent with Supreme Court
decision making if the observed pattern of decision making in the lower court
mirrors that of the Supreme Court. In other words, if the factors important in
determining case outcomes in the U.S. Supreme Court are also those that are
important — and important in the same way - in the court, then the latter is
congruent with the former. Responsiveness is more dynamic in that it refers to
the degree to which a lower court tracks changes in the decision making of its
superior over time. In the context of search and seizure, the lower courts are
responsive to the U.S. Supreme Court if they become more or less likely to

uphold a challenged search or seizure as the U.S. Supreme Court does so.

Table 3.2 illustrates these concepts with the use of a simple example with three
generic case facts. The effect of each of these generic case facts in the U.S.
Supreme Court is listed in the first column of arrows in Table 3.2. The expected
effect of case facts 1 and 2 is to increase the likelihood of a challenged search

being upheld in the United States Supreme Court. The expected effect of the

59

Table 3.2

The Concepts of Congruence and Responsiveness

 

Congruent Congruent Responsive

 

USSC and but not but not
Responsive Responsive Congruent
Case Fact 1 T T T I
Case Fact 2 T T T I
Case Fact 3 I I I T
USSC T T _ T
Conservatism

 

T = increases likelihood of upholding challenged search and seizure
I = decreases likelihood of upholding challenged search and seizure

60

third case fact, however, is to decrease the likelihood of the challenged search or
seizure being upheld. And, as the Supreme Court becomes more conservative it

becomes concomitantly more likely to uphold a challenged search or seizure.

The expected pattern for a lower court that is both congruent and responsive
appears in the second column of arrows in Table 3.2. The parameter estimates
for each case fact are in the same direction for the lower court as they are for the
United States Supreme Court. That is, case facts 1 and 2 increase the likelihood
of a challenged search or seizure being upheld while case fact 3 decreases that
likelihood. This parallel pattern of effects is what enables us to characterize the
lower court as congruent with Supreme Court decision making. The positive
relationship between the likelihood of the Supreme Court upholding a challenged
search — as captured by the counter variable representing increased
conservatism — and the likelihood of the lower court upholding a challenged
search characterizes the lower court as responsive to Supreme Court decision

making.

The third column of arrows represents the situation in which a lower court is
congruent but not responsive. Note that the pattern of effects of the three case
facts remains the same, but the increasing likelihood of the U.S. Supreme Court
to uphold a challenged search or seizure does not affect the likelihood of the
state supreme court doing the same. The lower court is not tracking the U.S.

Supreme Court. The last column of arrows illustrates a state supreme court that

61

is responsive — it is tracking Supreme Court trends — but not congruent — the
direction of the effects for the case facts do not match the effects in the United

States Supreme Court.

Songer and his colleagues ultimately characterized Courts of Appeals decision
making in the area of search and seizure as both congruent with and responsive
to Supreme Court decision making. As in the U.S. Supreme Court, in the Courts
of Appeals each of the location case facts (house, business, person, auto) were
signed negatively, though neither the person nor the auto variables were
signiﬁcant for the Courts of Appeals. Further, if there was a search warrant, the
search was pursuant to an arrest or it fell into one of the recognized exceptions
to the warrant requirement, the search was more likely to be upheld in the Courts
of Appeals, as in the Supreme Court. In short, case facts mattered and mattered

in the same way for the Courts of Appeals as for the Supreme Court.

In addition to ﬁnding a parallel in the pattern of effects of the search and seizure
case facts between both levels of court, Songer, Segal and Cameron also found
that the Courts of Appeals became more likely to uphold a challenged search or
seizure as the Supreme Court did so. In other words, they found the Courts Of
Appeals responsive to U.S. Supreme Court search and seizure decision making.
They conclude, “These findings suggest that appeals court judges are

substantially constrained by the preferences of their principal, but the complexity

62

and tremendous variety of the fact situations presented on appeal frequently

provide them with room to maneuver” (692-693).

The studies by Segal (1984) and Songer, Segal and Cameron (1994) each
provide unique insights on the decision-making calculus of the U.S. Supreme
Court and federal appeals courts, respectively. Segal demonstrated that a
seemingly confused yet important area of Supreme Court jurisprudence, search
and seizure, could be ordered once the relevant legal stimuli and attitudinal
factors are brought to bear. Songer, Segal and Cameron, on the other hand,
established that, While the attitudinal predispositions of the judges remain
important, understanding decision making in the federal intermediate appellate
courts requires understanding constraints imposed on that decision making given

their position in the judicial hierarchy.

Considered jointly, these studies pique curiosity as to which — the U.S. Supreme
Court or the Courts of Appeals — state supreme courts will behave like most. As
the highest court in their respective state political systems, will state supreme
courts decide cases based on the Characteristics of the cases before them as
they interact with the preferred policy positions of their decision-making
majorities? Or, as a subordinate to the U.S. Supreme Court in the judicial
hierarchy, will state supreme courts decision making be appreciably constrained

by the inferior-superior court relationship? This is an empirical question, one I

63

turn to answering subsequently in this chapter. As a precursor, I first discuss the

choice to focus on search and seizure decision making.

Choosing Search and Seizure

The ideal approach to studying judicial impact would be to evaluate faithfulness
with the use of cases from every substantive issue area dealt with by the
Supreme Court. A global approach is problematic, however, since important
aspects of judicial impact require well-speciﬁed models Of decision making,
specifications that take into account different elements of the substantive content
of the cases being decided. If controls for variation in the factual content of the
cases being decided are not taken into account, it is impossible to ascertain
whether observed lower court behavior is in response to Supreme Court decision
making or an artifact of the particulars of the cases being decided. To account
for the fact that the cases at the bar at each level of court differ, the
characteristics of the cases must be controlled for. This necessitates the use of

a substantive area for which a well-developed fact pattern has been established.

There are a number of substantive issue areas for which fact patterns have been
successfully developed and employed. Both Gryski, Main and Dixon (1986) and
Segal and Reedy (1988), for example, developed useful fact patterns for sex
discrimination cases while McGuire (1990), Hagle (1991) and Songer and Haire

(1992) did the same in the area of obscenity. Research on capital punishment

64

has also incorporated elements of the factual situations involved with notable
success (e.g., George and Epstein 1992, Brace and Hall 1995). Given that
Segal’s (1984, 1986) search and seizure fact pattern has consistently performed
well, at more than one level of court, the search and seizure cases are a natural
choice of substantive focus. Choosing the search and seizure cases also offers
the added advantage of allowing for comparisons with Segal’s (1984) work on
the Supreme Court and Songer and his colleagues’ (1994) work on the appeals

courts.

In assessing the state of the judicial impact and compliance literature, some
scholars have criticized the use of what they consider atypical cases (Baum
1978, Johnson and Canon 1984, Songer 1987, Reid 1988), such as search and
seizure cases. Note, ﬁrst, that there is no such thing as a ‘typical’ case for either
state supreme courts or for the United States Supreme Court. Their dockets are
populated with cases dealing with almost every imaginable conﬂict or potential

conﬂict between individuals, corporations, groups and governments.

The closest thing to a typical case for state courts of last resort would be a
criminal case, which is what search and seizure cases are by their nature. A
search and seizure case most commonly pits the forces of government against a
criminal defendant. While there are no comprehensive data concerning the exact
distribution of case types across states and years, the National Center for State

Courts (NCSC), in its recent report on state court caseloads, provides a basic

65

indication as to what the dockets of state supreme courts look like. In the 33
state high courts for which it had complete data, the NCSC found that 44% of the
discretionary petitions (i.e., those petitions which the court is not required to hear
but which may be granted a hearing at the discretion of the court) ﬁled in 1997
were criminal while 34% were civil, with 11% and 5% falling under the categories
of original proceedings and administrative agency appeals, respectively (Ostrom
and Kauder 1998, 81). With respect to the United States Supreme Court,
criminal appeals comprise roughly one-ﬁfth of the high court’s formally decided
cases (Epstein, Segal, Spaeth and Walker 1998). While search and seizure
cases may not be ‘typical,’ they are certainly not ‘atypical.’ Of course, caution
must be exercised in generalizing beyond any particular set of cases at hand.
But this caution is as applicable to the myriad other studies of judicial behavior,
whether concerned with judicial compliance (e.g., Beiser 1968, Tarr 1977,
Songer, Segal and Cameron 1994) or judicial decision making more generally

(e.g., Segal 1984, Brace, Hall and Langer 1996), as it is to the present study.

Further, search and seizure cases represent a stringent test of state supreme
court faithfulness. As Songer and his collaborators ably put it,

. . . [T]he choice of search and seizure cases provides a severe test
of the expectation that appeals court judges will be responsive to
changing Supreme Court doctrine and policy. First, application of
the exclusionary rule [which excludes the use of illegally seized
evidence in criminal prosecutions] would seem to result in
“controversial civil liberties cases,” the type of case in which lower
courts are thought to be least responsive . . . . [Further] Supreme
Court doctrine is often characterized as ambiguous and complex,
two factors that are also expected to reduce responsiveness . . . .
Moreover, it is well established that the policy values of lower

66

federal court judges are signiﬁcantly related to their criminal justice
decisions (1994, 678).

While Songer et al. were discussing lower federal court judges, each point they
make is equally applicable to state court judges. If I ﬁnd state supreme court
decision making that is congruent and/or responsive, despite the nature of
search and seizure decision making, then it is all the more likely that decision

making in less controversial areas is likewise reﬂective of Supreme Court policy.

In addition, there are also substantive reasons that make search and seizure
decisions an appealing focus. To begin with, issues of search and seizure were
important enough to be addressed speciﬁcally in the United States Constitution,
despite the brevity of that document. The text of the 4th Amendment reads as
follows:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or afﬁrrnation, and particularly

describing the place to be searched, and the persons or things to

be seized.
For the founding fathers, this protection against unreasonable searches and
seizures was not merely a philosophical nicety but, rather, was rooted in the
immediate experiences of the colonists. Virtually unfettered powers of search
and seizure had been granted government ofﬁcials and agents in England
beginning with the reign of the Tudors (Landynski 1966, 20-24). General writs, or

warrants, allowed those charged with enforcing the law of the realm to basically

search anyone and any place at anytime without any justiﬁcation other than the

67

broad principle of law enforcement. Flagrant abuses of this police power
ultimately culminated in a series of judicial decisions and House of Commons
pronouncements that vitiated the use of such general warrants (Landynski 1966,

29-30).

What was left virtually unchanged, however, was the use of general writs of
assistance to search for smuggled goods and other contraband. English
customs authorities in the American colonies used such tools extensively to
combat the pervasive smuggling intended to subvert restrictions on trade that
was on-going in the colonies (Landynski 1992, 313). These direct and immediate
experiences of the former colonists made them very concerned with preventing
similar abuses by any post-colonial government. No less than eight states
included prohibitions against general warrants in their pre-constitutional
convention constitutions and four state ratification conventions advocated a
constitutional amendment prohibiting the same for the new federal government
(Anastaplo 1995, 71). In short, the search and seizure cases are worthy of our
attention if for no other reason than the fact that they have historically been
considered important enough to be addressed in the foundational document of

the federal government.

The importance of this body of cases is not solely linked to the historical origins

of the 4th Amendment, however. They are important, too, in light of the modern

societal concern with crime.

68

The Fourth Amendment. . . is the constitutional provision that,

more directly than any other, governs police and administrative

investigations. It is designed to preserve the most Cherished values

of a free society by striking a fair balance between society’s

demand for order and public safety, on the one hand, and the

individual’s need for security and privacy, on the other (Landynski

1992, 311).
While the average citizen may cringe to think of law enforcement run amok,
operating without consequences for abusive and illegal practices, he very likely
also ﬁnds the notion of the “guilty” being set free due to ostensibly harmless error

on the part of law enforcement contrary to common sense.

It is not the 4'" Amendment itself that is controversial but its interpretation and
application, especially the operation of the exclusionary rule by which evidence
seized via an illegal search is rendered inadmissible.9 Those supportive of the
exclusionary rule argue that, though illegally seized evidence may be unlikely to
make an innocent person appear guilty of a crime, it is nonetheless an important
safeguard. On the other hand, in the case of evidence that supports the
commission of a crime but has been seized illegally and is thus excluded, what is
being excluded is no less reliable merely because it has been excluded,
according to those opposed to the exclusionary rule. Unlike the case of a
coerced confession, exclusion of evidence obtained in violation of the 4th
Amendment is no less reliable due to its constitutional defect. While persuasive
arguments for the continued use of the exclusionary rule are made by legal
theorists, law school professors and other academics, to the typical member of

the lay public these arguments are esoteric at best and disingenuous at worst.

69

The relevant point in terms of the present research is that, while the public may
not engage in dialogue over the finer points of the 4th Amendment (or even be
certain of the content of the 4th Amendment), society does care about criminal
cases that are lost - or not even pursued - due to "technicalities.” The public
may not articulate its concern over crime in the lexicon of the 4‘" Amendment but

its concern is nonetheless meaningfully related to the 4th Amendment.

In addition to its substantive importance, the body of search and seizure cases
possesses another important characteristic from the perspective of impact
research; namely, the Supreme Court’s rulings in this area of law evidence
considerable variation over time. Kamisar (1984) identified three phases in the
Burger Court’s treatment of search and seizure cases from the 1970s through the
mid- to early 19803. He characterized the ﬁrst phase as a narrowing of
protection against unreasonable search and seizure. For example, the Court
significantly eased the state’s burden to prove consent had been given for
searches in Schneckloth v. Bustamonte1o and disallowed the right of grand jury
witnesses in United States v. Calandra11 to refuse to testify because the
questions are based on illegal searches. Kamisar described the second phase,
from roughly 1977 to 1981, as mixed but with some clearly pro-4th Amendment
rulings, including the ruling invalidating the police practice of entering a home to
make an arrest without a search warrant.12 Finally, in describing the third phase,

Kamisar offered the following opinion: “It is in the area of search and seizure

70

[within the area of criminal procedure] that the Burger Court, after a mixed

performance for a number of years, seems to have hit its stride” (1984, 274).

Further evidence of the variation over time in the Supreme Court’s treatment of
search and seizure cases is presented in Figure 3.1. Figure 3.1 was generated
using Spaeth’s (1997) United States Supreme Court Judicial Database and
shows the number of Supreme Court rulings supportive of and in opposition to 4th
Amendment protections in orally argued cases from the 1960 through the 1991
terms. Note that both the absolute number of decisions supportive of 4th
Amendment protections and the number relative to all search and seizure cases
varies considerably from term to term. The variability in Supreme Court rulings in
this area of the law allows for more rigorous testing of hypotheses regarding the
responsiveness of state supreme courts to Supreme Court decision making.
These varying trends also allow for an assessment of the extent to which state
supreme courts track Changes in either direction in Supreme Court decision

making.

The use of any subset of cases for the testing of propositions regarding judicial
impact is incapable of providing a complete picture. When design considerations
necessitate the use of such a subset, however, issues of substantive importance
should be given due weight. The area of search and seizure is desirable on both
historical and contemporary grounds. Moreover, this area of law has seen

variation over time in its treatment by the Supreme Court, a desirable

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72

characteristic for the purposes of testing hypotheses regarding the impact of the
Supreme Court on lower court decision making. In sum, the use of search and
seizure cases is not only a reasonable but also a desirable choice for present

purposes.

The Search and Seizure Data

The data for this analysis consist of a random sample of 250 state supreme court
decisions in search and seizure cases decided from 1961 through 1990. The
1961-1990 period was selected to facilitate comparison with results Songer,
Segal and Cameron reported for the Courts of Appeals. State supreme court
decisions were identiﬁed with the use of West’s key number system. The
complete set of search and seizure key numbers used to identify the universe of
state supreme court search and seizure decisions is reported in Appendix 3A.
The universe of such cases was first identified with the use of West’s Decennial
Digest for the appropriate years. Each listing for each West key number under
the search and seizure heading was entered into a spreadsheet. Since cases
can and most often do appear under more than one key number, the resulting ﬁle

was then sorted by case citation and duplicate citations consolidated.

Note that the states vary tremendously in terms of the number of search and

seizure cases appearing on their dockets, as can be seen in Table 3.3. Colorado

has the greatest number of search and seizure challenges on its docket for the

73

Table 3.3

Distribution of State Supreme Court Search and Seizure Cases, 1961 -1 990

 

 

Region State Number Rank
Middle West Illinois 52 22
Indiana 102 7
Michigan 36 36
Minnesota 55 20
Ohio 22 44
Wisconsin 50 24
Mountain Colorado 140 1
Idaho 14 48
Montana 61 16
Nevada 19 45
Utah 47 27
Wyoming 36 34
North East Connecticut 55 21
Delaware 13 49
Maine 77 1 1
Maryland 30 38
Massachusetts 121 3
New Hampshire 61 17
New Jersey 50 26
New York 63 14
Pennsylvania 50 25
Rhode Island 52 23
Vermont 25 42
Paciﬁc Alaska 36 35

 

74

 

 

Table 3.3 (cont’d.)

California 55 19
Hawaii 107 6
Oregon 69 13
Washington 61 15
Plains Iowa 91 9
Kansas 41 29
Missouri 36 32
Nebraska 110 5
North Dakota 58 18
South Dakota 41 31
South East Alabama 30 37
Arkansas 28 39
.Georgia 36 33
Florida 69 12
Kentucky 17 46
Louisiana 1 16 4
Mississippi 41 28
North Carolina 25 41
South Carolina 17 47
Tennessee 22 43
Virginia 25 40
West Virginia 77 10
South West Arizona 41 30
New Mexico 1 1 50
Oklahoma 96 8
Texas 121 2

Total 2703

 

75

Table 3.4

Top and Bottom Rankings

 

 

Rank State Region Rank State Region

1 Colorado Mountain 50 New Mexico South West
2 Texas South West 49 Delaware North East
3 Massachusetts North East 48 Idaho Mountain

4 Louisiana South East 47 South Carolina South East
5 Nebraska North West 46 Kentucky South East
6 Hawaii Paciﬁc 45 Nevada Mountain

7 Indiana Middle West 44 Ohio Middle West
8 Oklahoma South West 43 Tennessee South East
9 Iowa Plains 42 Vermont North East
10 West Virginia South East 41 North Carolina South East

 

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77

period, followed closely by Texas and Massachusetts. As Table 3.4 shows, there
is no distinct regional pattern in the distribution of cases on the docket. Those
states in the top ten with regard to the number of search and seizure challenges
include two each from the South East and South West, and one from each of the
other regional groupings. Those with the fewest number of search and seizure
challenges include Delaware, New Mexico, Idaho, South Carolina and Kentucky.
As Figure 3.2 shows, the number of search and seizure decisions on state
supreme court dockets evidences remarkable variation over time, as well. The

number of cases appears to ebb and ﬂow with considerable regularity.

The sample of 250 cases represents just fewer than 10 percent of the universe of
such cases and includes cases from 38 of the 50 states.13 The distribution of
cases in the sample by state is reported in Appendix 3B while the distribution of

cases in the sample by year is reported in Appendix 3C.

The unit of analysis is the search or seizure, rather than the case. This means
that a single case decided by a state supreme court can yield two observations if
it disposes of two separate searches or seizures. (See Appendices 3B and 3C
for the distribution of observations in the sample by state and year, respectively.)
Each case was read in its entirety and coded for the case facts identiﬁed by
Segal (1984) as relevant for search and seizure. My hypotheses mirror those of
Segal for the U.S. Supreme Court and reported in Table 3.1. Speciﬁcally, I

hypothesize that the search of a home, business, person and auto will each be

78

less likely to be upheld than a search of a public place. I also hypothesize that a
full body search is less likely to be upheld than a frisk search, in which an officer
runs his or her hands over the outside of a suspect clothing to insure that there
are no weapons. Further, if a search takes place with a warrant, occurs in the
presence of probable cause, or is incident to or after a lawful arrest, l
hypothesize that the search is more likely to be upheld. l have no expectation
regarding the likelihood of a challenged search or seizure being upheld if it is
incident to an unlawful arrest but do expect that a search or seizure falling under
one of the recognized exceptions to the warrant requirement will be more likely to

be upheld.

The complete set of coding rules are reported in Appendix 3D, however, while
the coding of the search and seizure case facts follows the discussion of Segal’s
coding presented earlier and is straight forward in most cases, a few variables
clearly warrant further discussion. Consider first the probable cause variable.
Probable cause presents a special problem for coding. As Segal notes,

. . [W]e do not know whether the Court’s decision on probable cause
contributes to its decision on the reasonableness of the search or merely justiﬁes
that decision” (1984, 894). Segal’s proffered means of addressing this dilemma
is coding probable cause on the basis of the proportion of the lower court ﬁnding
probable cause. I, too, code probable cause on the basis of the lower court

ruling.

79

In some instances, the proportion of the lower court judges ﬁnding probable
cause was a simple matter to determine. If a case reached the state supreme
court directly from the trial court, without ﬁrst being heard by an intermediate
appellate tribunal, then the probable cause variable was either 1 or 0 since there
would be only a single trial court judge hearing the case below. It was also
equally easy to code the probable cause variable directly from the state supreme
court decision when the court indicated whether or not the lower court was
unanimous in its ruling on the presence of probable cause. However, when a
case was last heard by an intermediate appellate court and it was not clear that
the intermediate appellate court was unanimous in its probable cause
determination, it was then necessary to consult the text of the intermediate
appellate court decision to discern the proportion of lower court judges ﬁnding

probable cause for the challenged search or seizure.

The incident, lawful and unlawful variables also merit further explanation. A
search is considered incident to arrest if it takes place just prior to the arrest of a
suspect. A search is considered incident to a lawful arrest if it takes place
subsequent to the lawful arrest of a suspect. And, a search is considered
incident to an unlawful arrest if it takes place subsequent to an arrest that is
subsequently deemed to have been an illegal arrest. When each of these
variables is coded as 0, then the search in question took place without an arrest

being involved in the situation.

80

Descriptive statistics for these and all variables are reported in Appendix 3E.

Analysis

The dependent variable is whether or not a challenged search or seizure in the
state supreme court was upheld. If the search or seizure was allowed, the
decision outcome was coded as 1, 0 othenlvise. The dichotomous nature of the
dependent variable requires an estimation technique suited to the unique
character of such variables. While either logit or probit would be an appropriate
choice, I opt for logit on the basis of its simpler functional form. The results of the

estimation are reported in Table 3.5.14

A comparison of the expected and observed effects of each independent variable
on the likelihood of a search or seizure being upheld ﬁnds that, in each case, the
observed result comports with the hypothesized result. More speciﬁcally, each of
the location variables (home, business, auto, person) is signed in the correct
direction, meaning that the challenged search is less likely to be upheld than if
the search is of a public place. However, neither the business nor the auto
variable attains statistical significance. If the search or seizure is of a person or
home, though, the effect is not only to depress the likelihood of the search or
seizure being upheld in a statistically significant sense, it is also an effect of
substantial magnitude. Further, if a search is a full body search as opposed to a

stop and frisk, the likelihood of the challenged search being upheld is signiﬁcantly

81

Table 3.5

Logit Estimation of State Supreme Court Search and Seizure Decision
Making, 1961 -1990

 

 

 

Independent Parameter Robust Marginal Expected
Variable Estimate Standard Effect‘ Effect
Error

Home -1.89* 0.94 -0.47 l3<1
Business -0.57 0.54 B<1
Person -1 .68* 0.55 0.42 p<1
Automobile -0.59 0.58 B<1
Extent of Search -2.03* 0.81 0.51 [3<1
Warrant 0.78* 0.39 0.20 B>1
Probable Cause 1.34* 0.51 0.34 3>1
Incident to Lawful 1.04* 0.35 0.26 B>1
Arrest
After Lawful Arrest 0.67 0.63 p>1
After Unlawful -0.13 0.11 -
Arrest
Exceptions 1 .67* 0.64 0.42 l3>1
USSC 007* 0.02 0.02 B>1
Conservatism
Constant -1 .21 1 .21
N 250
% searches upheld 54%
% correctly 69%
predicted
PRE 32.61%
x2 433.56

* Signiﬁcant at a s 0.05.

a Marginal effects are calculated on the basis of a baseline probability of 0.5.

82

Table 3.5 (cont’d.)

% correctly predicted - % modal cateogry
100% - % modal cateogry

 

PRE: 100% *

83

decreased. In fact, the extent of the search has the greatest marginal effect of all
the variables, decreasing the likelihood of a search being upheld by 51% for a

search that othenlvise has a 50-50 chance of being upheld.

The model performs well, correctly categorizing almost 70% of the cases with a
proportional reduction in error of 33%. The real question of interest, with regard
to congruence, however, is how well the model performs for state supreme
courts vis-a-vis its performance for the U.S. Supreme Court. While comparing
parameter estimates across samples is inappropriate, it is quite permissible to
compare the pattern of effects, which is exactly what is required to assess
congruence. Table 3.6 reports the direction and statistical signiﬁcance of each of
the search and seizure case facts that Songer and his colleagues (1994) report
for the U.S. Supreme Court for 1961-1990 in the second column. The fourth
column reports the same for the state supreme court results as reported in Table
3.6. Perhaps the most important feature to note is that the effect of each element
in the fact pattern is in the same direction for the state supreme courts as it is for
the U.S. Supreme Court, with the one exception of probable cause. For the
Supreme Court, the proportion of lower court judges finding probable cause is
negatively related to the likelihood of a challenged search or seizure being
upheld, though it does achieve statistical significance. On the other hand, in the
case of state supreme courts the relationship is both positive and statistically

signiﬁcant.

84

Table 3.6

Search and Seizure Decision Making Patterns
U. S. Supreme Court, U. S. Courts of Appeals and State Supreme Courts

 

 

1961 -1990
variable U.S. U.S. State
Supreme Courts of Supreme
Court Appeals Courts
Home negative negative negative
Business negative negative negative
Person negative negative negative
Automobile negative negative negative
Extent of Search negative negative negative
Warrant positive positive positive
Probable Cause negative positive positive
Incident to Lawful positive positive positive
Arrest
After Lawful positive positive positive
Arrest
After Unlawful negative positive negative
Arrest
Exceptions positive positive positive
USSC positive positive positive
Conservatism
Constant negative negative negative

 

85

Note: Relationships underlined are statistically significant or s 0.05.

The fact that probable cause does not perform as theoretically expected for the
U.S. Supreme Court but does for state supreme courts is an interesting ﬁnding.
One plausible explanation for this result hinges on the identity of the lower court
judges on whose assessments probable cause is based. For both state supreme
courts and the U.S. Supreme Court, probable cause is measured as the
proportion of lower court judges finding probable cause to exist. The difference
between the two is that, for state supreme courts the lower court judges are
always other members of the same state judiciary, while for the U.S. Supreme
Court the lower court judges could be either state or federal, depending upon the
origination and history of the case. It is reasonable to suppose that there is
greater agreement within a state’s legal community as to what constitutes
probable cause than between the heterogeneous set of lower court judges and

the Supreme Court in its search and seizure cases.

It is also interesting to note that the relationships are substantially the same not
only between the U.S. Supreme Court and state courts of last resort but also
between state courts of last resort and the Courts of Appeals. This can be seen
via a comparison of the direction and statistical signiﬁcance of the search and
seizure case facts for the state supreme courts and the Courts of Appeals. (See
Columns 3 and 4, Table 3.6.) Not all of the same relationships are statistically
signiﬁcant across all three courts, but all but two (probable cause and search
after an unlawful arrest) are in the same direction across all three. This suggests

that these three components of the American judicial system — the U.S. Supreme

86

Court, the U.S. Courts of Appeals, and the state supreme courts — are more

integrated than might be supposed.

Let us now consider the responsiveness of state supreme courts to the U.S.
Supreme Court. Recall, again, that responsiveness refers to the extent to which
the lower court tracks changes in decision making in the superior court. To
assess responsiveness empirically, a Supreme Court change variable is included
in the state supreme court model. Given that one of the goals is to compare the
results for state supreme courts with those Songer and his collaborators report
for the Courts of Appeals, I use the same Supreme Court change variable they
used. After testing a series of alternative speciﬁcations for Supreme Court
search and seizure decision making, they employ a simple counter variable set at
0 during the Warren Court years and incremented by 1 for each passing year
starting with the Burger Court. This variable is both positive (indicating an
increasing likelihood of a state supreme court upholding a challenged search or
seizure) and statistically signiﬁcant. As was the case for the Courts of Appeals,

state supreme courts do track changes in the U.S. Supreme Court.

Conclusion

The purpose of this analysis was to assess the extent to which state supreme

courts are faithful to Supreme Court rulings in search and seizure cases, in terms

of how well the factors that dominate Supreme Court decision making in this area

87

explain state supreme court decision making in the same area and in terms of
how responsive to changes in Supreme Court search and seizure decision
making state supreme courts are. To this end, the research strategy employed
by Songer, Segal and Cameron to assess congruence and responsiveness of the
Courts of Appeals to the Supreme Court was replicated in the context of state
supreme court-Supreme Court relations. From the empirical results a picture
emerges of both congruent and responsive decision making by state supreme
courts. While the pattern of effects of individual elements of the set of search
and seizure case facts is not identical between the two levels of courts, they
substantially agree. Further, changes in Supreme Court decision making are
influential in state supreme court decision making, evidencing responsiveness on

the part of state supreme courts.

This is a non-obvious finding that is important in two ways. First, it is supportive
of a variant of the legal model at the state supreme court level. First, while case
facts undoubtedly elicit responses based on the attitudes and ideological
predispositions of judges, they also represent legal stimuli to the extent that the
Supreme Court has made clear its policy regarding case dispositions with these
facts. The fact that state supreme courts treat the case facts in largely the same
way that the U.S. Supreme Court does suggests that the former are paying
attention to and taking cues from the latter in disposing of cases. The

responsiveness of state supreme courts to the U.S. Supreme Court evidenced by

88

the effect of increasing Supreme Court conservatism further supports this

inference.

These ﬁndings are important, too, for what they suggest about the nature of our
federated American judicial system. Noncompliance on the part of state
supreme courts in the race relations cases of the 19605 reinvigorated the study
of judicial impact. It was their very public and very vocal resistance that led
scholars to reexamine the presumption of obedience to the U.S. Supreme Court.
Students of judicial impact since then have regularly implied, with little empirical
verification, that we should see greater compliance by those judges and courts
that are part of the federal judiciary than by those judges and courts whose
membership is in state court systems. The analysis presented above, however,
belies this assumption, suggesting, instead, a greater degree of integration

across state and federal courts.

As informative as this analysis is, at this juncture, there is no way to distinguish
whether the observed congruence and responsiveness is an artifact of similar
Supreme Court and state supreme court preferences or truly represents the latter
obeying the former. Fact patterns are as a rule derived from Supreme Court
rulings. That is, speciﬁc facts thought to increase the likelihood of voting in a
particular way are usually identiﬁed as being important on the basis of Supreme
Court rulings dealing speciﬁcally with them. While fact pattern analyses typically

perform well in predicting outcomes, their results can be less than illuminating

89

when it comes to discerning whether these case facts tap into the preferences of
the judges making the decisions or have more to do with the precedential value

of Supreme Court rulings.

To illustrate, consider the case of a home search conducted with the permission
not of the suspect but of a cohabitant in the home. The Supreme Court ruled in
the 1969 case of Frazier v. Cupp15 that such a search is permissible. lf
permission by a cohabitant decreases the likelihood of the invalidation of a
search by a state supreme court, should that effect be attributed to the inﬂuence
of the Supreme Court’s ruling (which would essentially be a legal argument) or to
the preferences of the lower court judges (an attitudinal argument)? Perhaps its

effect should be apportioned between the two?

One means of ascertaining this would be to consider the effect of this particular
case fact on state supreme court decision making before and after the ruling. If
this particular case fact contributes nothing to explanation prior to Frazier v. Cupp
but decreases the likelihood of invalidation by state supreme courts after the
ruling, this would suggest that the Supreme Court is, in fact, inﬂuencing decision
making in the lower state court. Alternatively, if permission from a cohabitant has
a similar effect before and after Frazier v. Cupp, it would be difﬁcult to say that
the Supreme Court is inﬂuencing the state supreme court with regard to this case
fact. It is also possible that there is an effect both before and after Frazier v.

Cupp, with the effect being even greater after the ruling. This might suggest that

90

permission by a cohabitant taps into the attitudes judges have about the
boundaries of the permissibility of searches and that, over and above these
attitudes, the Supreme Court has an inﬂuence. In short, applying a fact pattern
analysis without accounting for the timing of Supreme Court rulings on particular

elements in the fact pattern leaves open the question of genuine inﬂuence.

One strategy would be to include each element of the fact pattern separately and
in interaction with the particular Supreme Court ruling related to it. Given the
number of case facts relevant for search and seizure cases (as well as virtually
all other substantive issues with well-developed fact patterns), this would result in
an unwieldy and less than parsimonious model. The alternative is to narrow the
substantive focus even further, selecting an area of law for which a smaller set of
case facts can plausibly be dispositive. A more compact set of case facts
enables the researcher to assess the impact of case facts both before and after
the pertinent Supreme Court rulings with the use of interactive terms. That is the
strategy employed in the following empirical chapters, using the area of
automobile search and seizure decisions. In the next chapter, I specifically
address the timing of Supreme Court decisions and their effects on decision
making in the state courts of last resort to determine if the results observed here

are truly indicative of obedience or are merely an artifact of coincidence.

91

Chapter Three Notes

‘ Warden v. Hayden 387 U.S. 294 (1967).

2 United States v. Ramsey 431 U.S. 606 (1977).

3 Collonade Catering v. United States 397 U.S. 72 (1970).
4 Wyman v. James 400 U.S. 309 (1971).

5 United States v. Calandra 414 U.S. 338 (1974).

6 Schneckloth v. Bustamonte 412 U.S. 218.

7 Frazier v. Cupp 394 U.S. 731 (1969).

8 Coolidge v. New Hampshire 493 U.S. 443 (1971).

9 The exclusionary rule was created by the Supreme Court in its decision in
Weeks v. United States 232 U.S. 383 (1914). It prohibited the use of illegally
seized evidence in federal prosecutions but did not originally apply to state
prosecutions. The Court ruled that the 4th Amendment did, in fact, extend
protections to criminal defendants in state proceedings but declined to require
the application of the exclusionary rule in Wolf v. Colorado 338 U.S. 25 (1949). A
little over a decade later, however, the Court did extend the exclusionary rule to
the states in its landmark ruling in Mapp v. Ohio 367 U.S. 643 (1961 ).

1° 412 U.S. 218 (1973).
“ 414 U.S. 333 (1974).
‘2 Payton v. New York 445 U.S. 573 (1980).

‘3 Since the purpose in this stage is to assess congruence and responsiveness of
state supreme courts generally, a simple random sample of the universe is
appropriate. If the concern at this point were to assess differences in
congruence and responsiveness as a function of state differences, such as
method of judicial selection or state political ideology, then a more appropriate
sample would be a stratiﬁed random sample with strata determined on the basis
of the hypothesized explanatory factors (e.g., method of judicial selection).

‘4 Standatd diagnostics were conducted. It is unlikely that each observation is
independent of one another since there is more than one observatIOh per state.
To account for this, the model was estimated using robust standard errors. As
Appendix 3F reports, there is no indication of multicollinearity. Further, testing for

92

temporal and unit effects with the use of time point and state dummies did not
indicate the need to control for either type of effect. Appendix 3G reports the
results of tests for influential and outlying cases.

‘5 394 U.S. 731.

93

APPENDIX 3A

West’s Decennial Digest Search and Seizure Key Numbers

In

General

11 In general

12 Constitutional and statutory provisions

13 What constitutes search or seizure
Taking samples of blood, or other physical specimens;

14 handwriting exemplars

15 Taking items abandoned, voluntarily surrendered, or sold

16 Observation; items in plain view

17 Interior of premises, view from outside

18 Vehicles

19 Use of artiﬁcial light or visual aids

20 Aerial surveillance

21 Use of electronic devices; tracking devices or "beepers."

22 Scent; use of dogs

23 Fourth Amendment and reasonableness in general

24 Necessity of and preference for warrant, and exceptions generally

25 Person, places, and things protected, in general

26 Expectation of privacy

27 Curtilage or open ﬁelds; yards and outbuildings

28 Abandoned, surrendered or disclaimed items

29 Containers

30 Items subject to seizure in general; nexus

31 Persons subject to limitations; governmental involvement

32 Application of federal standards to states and territories

33 Private Persons

34 Carriers and communication companies

35 Foreign states or ofﬁcers

36 Circumstances affecting validity of warrantless search, in general
Nature and source of information in general; suspicion or

37 conjecture

38 Hearsay; informers; collective knowledge

39 Particular concrete cases

40 Probable cause

41 Hearsay; informers; collective knowledge

Emergencies and exigent circumstances; opportunity to obtain
42 warrant

43 Pursuit

44 Presence of probable cause

45 Likely escape or loss of evidence
46 Offense in ofﬁcer's presence

47 Plain view from lawful vantage point

94

48 lnadvertency requirement

49 Nature of items seized, nexus

50 Closed containers, luggage

51 , Use of artiﬁcial light or visual aids

52 Arrested persons, search of, in general

53 Scope, conduct, and duration of warrantless search
54 Mode of entry; warning and announcement
55 Skin, strip and body searches

56 Aerial surveillance

57 Temporary investigative detention of goods

58 Inventory or booking search

59 Vehicles, vessels, and aircraft in general

60 Motor vehicles

61 Expectation of privacy

62 Probable cause or reasonable cause

63 Plain view

64 Emergencies or exigencies

65 Scope; truck, compartments, containers and luggage
66 Inventory and impoundment; time and place of search
67 Weapons; protective searches

68 Vehicle searches

69 Plain view

70 Protective searches

71 Protective sweep; security check

72 Airport and boarding searches

73 Aliens and enemies

74 Income tax returns

75 Witnesses; subpoenas

76 Corporations; ofﬁces and records

77 Safe deposit boxes

78 Samples and tests, identiﬁcation procedures

79 Administrative inspections and searches; regulated businesses
80 Effect of illegal conduct, trespass

81 Invalid warrant

82 Curing illegality; justification by result

83 Seizure proceedings against property forfeited

84 Disposition of property seized

85 Liability for wrongful search and seizure; actions
Warrants

101 In general

102 Permissible subjects, objects and purposes

1 03 Authority to issue

104 Impartial magistrate requirement

105 Complaint, application, or affidavit, in general

106 Persons who may apply for or assign affidavit
1 07 Formal requirements

95

108 Necessity for writing; oral presentation or supplementation
109 Proceedings for issuance

1 10 Telephone warrants

111 Factual showing, in general

112 False, inaccurate, or perjured information; disclosure
113 Probable or reasonable cause, in general

114 Particular concrete application

115 Competency of information; hearsay

116 Information from others in general

117 Reliability or credibility; corroboration

118 Anonymous or conﬁdential informants

1 19 Citizens, victims, or ofﬁcers

120 Legality of information

121 Time for application or issuance; staleness

122 Anticipatory warrants

123 Form and contents of warrant; signature

124 Particularity or generality and overbreadth in general
125 Objects or information sought

126 Places, objects, or persons to be searched
127 Error or misdescription

128 Modiﬁcation or vacation

129 Administrative warrants

Execution and

Return of

Warrants

142 Persons participating; place of search

143 Manner of entry; warning and announcement

144 Warrant direction; supporting showing

145 Time of execution

146 Night-time execution; warrant directions and supporting showing
147 Scope of search

148 Places, persons, and things within scope of warrant
149 Objects in plain view, inadvertent discovery

150 Return; inventory

Standing

to Object

1 61

162 Privacy interest or expectation, in general

163 Possessions crimes, automatic standing

164 Particular concrete applications

165 Automobile searches

Waiver

and

Consent

171 lln general

172 Words or conduct expressing consent; acquiescence

96

173
174
175
176
177
178
179
180
181
182
183
184
185
186

Persons giving consent
Owners of property; hosts and guests
Landlords and tenants
Hotels and motels
Joint occupants
Family members
Validity of consent
Voluntary in nature in general
Particular concrete applications
Prior official misconduct; misrepresentation, trick or deceit
Knowledge of rights, warnings and advice
Custody, restraint or detention issues
Implied consent; airport, boarding or entry searches
Scope and duration of consent; withdrawal

Judicial Review of
Determination

191
192
193
194
195
196
197
198
199
200
201
202

In general; conclusiveness of warrant in general
Presumptions and burden of proof
Search under warrant
Consent, and validity thereof
Weight and sufﬁciency of evidence
Warrants, issuance and execution
Consent in general
Validity of consent
Hearing, in camera inspection
Scope of inquiry or review, in general
Questions of law or fact
Determination of relief

97

APPENDIX 38

 

 

Table 3A.1
Sample Distribution of State Supreme Court Search and Seizure Cases
by State
Region State Number of Number of Number of
Court Court Observations
Decisions in Decisions in
Universe in Sample Sample

Middle West Illinois 52 4 4
Indiana 1 02 4 5
Michigan 36 3 3
Minnesota 55 5 5
Ohio 22 0 0
Wisconsin 50 6 6
Mountain Colorado 140 6 6
Idaho 14 0 0
Montana 61 3 3
Nevada 19 0 0
Utah 47 5 5
Wyoming 36 3 3
North East Connecticut 55 5 5
Delaware 13 0 0
Maine 77 4 4
Maryland 30 2 2
Massachusetts 121 9 9
New Hampshire 61 2 2
New Jersey 50 3 3
New York 63 4 6
Pennsylvania 50 4 4
Rhode Island 52 2 2
Vermont 25 0 0
Pacific Alaska 36 0 0
California 55 4 4
Hawaii 107 5 5
Oregon 69 8 8
Washington 61 4 4
Plains Iowa 91 10 10
Kansas 41 8 8
Missouri 36 6 6

 

98

Table 3A.1 (cont’d.)

 

 

Nebraska 1 10 14 15
North Dakota 58 1 5 15
South Dakota 41 5 5
South East Alabama 30 7 7
Arkansas 28 0 0
Georgia 36 6 6
Florida 69 7 7
Kentucky 1 7 0 0
Louisiana 116 14 17
Mississippi 41 5 5
North Carolina 25 3 3
South Carolina 17 0 0
Tennessee 22 0 0
Virginia 25 0 0
West Virginia 77 7 7
South West Arizona 41 11 12
New Mexico 1 1 0 0
Oklahoma 96 13 15
Texas 121 1 3 1 5
Total 2703 239 250

 

99

APPENDIX 3C

 

 

 

Table 3A.2
Sample Distribution of State Supreme Court Search and Seizure Cases
By Year
Year Court Decisions Court Decisions Observations in
in Universe in Sample Sanﬂe
1 960 59 5 5
1 961 61 6 6
1 962 1 51 1 9 20
1963 90 1 1 1 1
1 964 1 1 9 8 8
1 965 90 1 0 1 0
1966 1 78 1 7 1 9
1 967 161 1 1 1 1
1 968 59 4 4
1 969 60 7 7
1 970 30 2 2
1971 30 5 5
1 972 120 1 0 1 1
1 973 90 5 5
1 974 149 1 3 14
1 975 60 2 2
1 976 1 01 9 9
1977 1 50 1 3 1 3
1 978 127 1 0 1 2
1 979 60 3 3
1 980 1 80 1 5 1 7
1 981 60 5 5
1 982 60 1 1
1 983 125 12 1 2
1 984 29 0 0
1 985 61 6 6
1 985 63 5 5
1 986 30 2 2
1 987 90 6 7
1 988 60 4 4
1 989 59 8 9
1 990 61 5 5
Total 2703 239 250

 

100

APPENDIX 3D

Search and Seizure Variable Coding

DEPENDENT VARIABLE

SEARCH1

1 = challenged search is upheld
0 = challenged search is invalidated

SEARCH AND SEIZURE CASE FACTS

HOME

BUSINESS

PERSON

AUTO

BODY

WARRANT

CAUSE
INCIDENT

LAWFUL

UNLAWFUL

EXCEPTION

1
O

= challenged search is of a home
= othenivise
1 = challenged search is of a business
0 = otherwise

1 = challenged search is of a person
0 = otherwise

1 = challenged search is of an automobile
0 = otherwise

1 = search is a full body search
0 = otherwise

1 = search takes place with a warrant
0 = otherwise

proportion of lower court judges ﬁnding probable cause

1 = search incident to a lawful arrest
0 = othenrvise

1 = search after a lawful arrest
0 = otherwise

1 = search after an unlawful arrest
0 = othenivise

1 = search falls under one of recognized warrant exceptions
0 = otherwise
exceptions
Exceptions to the warrant requirement
1) a search or seizure after hot pursuit
2) a search or seizure at a ﬁxed or functional border

101

3) a search or seizure statutorily allowed pursuant to
legislative authority to regulate business

4) seized evidence used solely for administrative or grand
jury hearings

5) seized evidence in plain view

6) search with permission of defendant or cohabitant.

UNITED STATE SUPREME COURT VARIABLE
USSC increasing U.S. Supreme Court conservatism
0 during the Warren Court years and incremented by one for

each successive year beginning with the start of the
Burger Court

102

APPENDIX 3E
Table 3A.3

Search and Seizure Descriptive Statistics

 

 

variable minimum maximum mean
Home 0 1 0.231
Business 0 1 0.051
Person 0 1 0.589
Automobile 0 1 0.129
Extent of Search 0 1 0.768
Warrant 0 1 0.519
Probable Cause 0 1 0.687
Incident to Lawful Arrest 0 1 0.301
After Lawful Arrest 0 1 0.171
After Unlawful Arrest 0 1 0.135
Exceptions 0 1 0.021
USSC Conservatism 0 22 6.436

 

103

APPENDIX 3F
Multicollinearity

The correlation matrix below indicates that there is no multicollinearity, as there is
no correlation that exceeds i 0.62,

 

 

 

HOME BUSI PERS AUTO FRIS WARR
HOME 1.000
BUSI -0.004 1.000
PERS 0.000 0.000 1.000
AUTO 0.000 0.000 0.000 1.000
FRIS 0.000 0.000 0.587 0.000 1.000
WARR 0.349 0.561 0.451 -0.313 0.058 1.000
CAUS 0.431 0.487 0.576 0.222 0.571 0.611
INCI 0.090 0.304 0.578 0.017 0.349 0.122
LAWF 0.191 0.009 0.559 0.083 0.196 0.393
UNLA 0.107 0.003 0.517 0.079 0.277 0.024
EXCE 0.035 0.021 0.080 0.341 0.091 0.029
USSC 0.178 0.389 0.211 0.189 0.366 0.102
CAUS INCI LAWF UNLA EXCE USSC
HOME
BUSI
PERS
AUTO
FRIS
WARR
CAUS 1.000
INCI 0.288 1.000
LAWF 0.578 0.000 1.000
UNLA 0.418 0.000 0.001 1.000
EXCE 0.034 0.081 0.110 0.003 1.000
USSC 0.099 0.061 0.310 0.045 0.155 1.000

 

104

APPENDIX 36

Diagnostic Evaluation
There are several diagnostic tools available for assessing the fit of a logit model
and the existence of influential cases (Hamilton 1992). One of these is the
change in the Pearson X2 (Axpz), which identiﬁes poorly fitting patterns
(combinations of independent variable values). Based on a plot of Axpz against
the predicted probabilities generated by the model, there appear to be 11 poorly
ﬁtting patterns: Colorado (2), Connecticut (1), Illinois (2), Indiana (2), Montana
(1 ), Oklahoma (1 ), Texas (2). When reestimating the model excluding those
observations from the sample, all of the relationships remain in the same
direction and of a similar magnitude as the estimates generated using the full

sample. Further, the same pattern of statistical signiﬁcance remains.

Another diagnostic tool is a plot of AB,- against the predicted probabilities. AB,-
measures the standardized change in the estimated parameters from deleting all
observations with the jth pattern of independent variables values. AB; can be
thought of as the leverage or influence cases with the jth pattern of independent
values have on the coefficients that are estimated with the given set of
observations. This plot identiﬁes 15 inﬂuential observations: Colorado (2),
Connecticut (1), Delaware (1), Illinois (3), Indiana (2), Montana (1), Oklahoma

(1 ), Texas (3), Wisconsin (1 ). (Of these 15, 8 are the same as those identiﬁed in
the plot of Axpz against the predicted probabilities.) Omitting these 15

observations from the sample and reestimating the model yields results that

105

largely echo those found with the plot of Axpz against the predicted probabilities.
The only substantive change is that the effect of a search being after an unlawful
arrest becomes statistically signiﬁcant. In other words, the inﬂuential
observations were masking the effect of this factor on the likelihood of a search

or seizure being upheld.

Jointly, these two diagnostic tools suggest that there are 18 observations that
differ from the other observations in the sample in a way that is not captured by
the model. One option is to simply use dummies for those observations. This is
a problematic approach, however, in that such dummies contribute nothing
toward a theoretical explanation of what is observed. Given that the results are
neither substantively nor statistically different based on the diagnostic plot (with
the one exception of statistical signiﬁcance for the unlawful arrest variable), and
in the absence of a theoretical explanation for why these 18 observations should
differ from the other members of the sample, the sample is left intact and the use

of outlier dummies is forgone.

106

CHAPTER FOUR
SUPREME COURT PRECEDENT AND AUTOMOBILE SEARCH AND
SEIZURE IN THE AMERICAN STATES

In Chapter Three, I examined two dimensions of judicial compliance:
congruence and responsiveness. Despite the relative autonomy enjoyed by
state supreme courts in the American judicial structure, the picture that emerged
in Chapter Three was one of substantial congruence and responsiveness
between the two. That is, the pattern of effects of search and seizure case facts
in state supreme court decision making mirrored that found in the United States
Supreme Court, and the Supreme Court’s increasing propensity to uphold
challenged searches and seizures was reﬂected in the decision making of state
supreme courts. As previously noted, however, assessing congruence and
responsiveness does not directly address whether state supreme courts are
following the dictates embedded in Supreme Court decisions. The goal of this
chapter is to more precisely test the effect of Supreme Court precedent on state
supreme court decision making, utilizing a subset of state supreme court search

and seizure cases: automobile search and seizure decisions.

The utility of the automobile search and seizure decisions derives, in part, from
the fact that the set of relevant case facts is limited in number. This permits a
direct assessment of the inﬂuence of Supreme Court rulings on the decision
making of state courts of last resort. In the remainder of this chapter, I ﬁrst

review the U.S. Supreme Court’s jurisprudence in the area of automobile search

107

and seizure, then develop a legal model that includes both automobile search
and seizure case characteristics and relevant Supreme Court rulings. Next, I test
this legal (or precedential) model using the universe of state supreme court
automobile search and seizure cases from 1970 through and including 1990 and

conclude with some observations regarding the implications of my findings.

Automobile Search and Seizure Jurisprudence

In modern American society, automobiles are ubiquitous. They serve as the
primary means of transportation for the majority of citizens, even in most heavily
urbanized areas with mass transportation systems in place. While most car
owners are not involved in nefarious activity and most cars are used for
legitimate purposes, the mobility of automobiles has presented unique
challenges for the United States Supreme Court in balancing the rights of society
against the protections afforded the criminally accused. The Court has
consistently granted wide latitude to law enforcement in the search of
automobiles, exempting them from the warrant requirement in most instances, on
the basis of their mobility and the lesser expectation of privacy implied by the fact

that a passersby can readily see into their interiors.
Arguably, the most important case in the area of automobile search and seizure

is the Supreme Court’s ruling in the 1925 case of Carroll v. United States.1 In

Carroll, the Court distinguished automobiles from houses and persons on the

108

basis of the ease with which they can be moved, enabling criminal suspects to
escape and possibly remove or destroy evidence. The ruling in Carroll did not,
however, confer unlimited discretion on public authorities to search anyone at
any time as long as the individual was in an automobile. Despite the fact that the
Court essentially carved out an automobile exception to the warrant requirement,
it still required probable cause on the part of law enforcement. As Chief Justice
Taft wrote,

It would be intolerable and unreasonable if [law enforcement] were

authorized to stop every automobile on the chance of finding [illegal

goods], and thus subject all persons lawfully using the highways to

the inconvenience and indignity of such a search. . . . [T]hose

lawfully within the country, entitled to use the public highways, have

a right to free passage without interruption or search unless there is

known to a competent official, authorized to search, probable cause

for believing that their vehicles are carrying contraband or illegal

merchandise.2

The Court explicitly reafﬁrmed the constitutional legitimacy of warrantless

searches of automobiles in the 1970 case of Chambers v. Maroney.3

The parameters of the automobile search exception have generally increased
since the Carroll case, expanding the discretion granted law enforcement while
concomitantly circumscribing the rights of the criminally accused. In essence,
policy safety and the preservation of evidence have been given increasingly
more weight while the individual rights of criminal defendants have been given

increasingly less weight.

109

While the Supreme Court has been more permissive in the latitude granted law
enforcement in the search of automobiles, the Court has been a great deal more
protective of the personal autonomy and integrity of individuals. Even in granting
law enforcement the authority to conduct stop and frisk searches in Terry v.
Ohio,4 the majority opinion roundly rejected the contention that such a search
does not have 4th Amendment implications for personal privacy:

. . . [ljt is nothing less than sheer torture of the English language to

suggest that a careful exploration of the outer surfaces of a

person’s clothing all over his or her body in an attempt to ﬁnd

weapons is not a “search.” Moreover, it is simply fantastic to urge

that such a procedure performed in public by a policeman while the

citizen stands helpless, perhaps facing a wall with his hands raised,

is a “petty indignity.” It is a serious intrusion upon the sanctity of

the person, which may inﬂict great indignity and arouse strong

resentment, and it is not to be undertaken lightly.
There is a tension between the lesser protections for automobiles and the greater
protections afforded individuals when the individual in question is the driver or
passenger of an automobile, leading the Court to deﬁne the boundaries of police

discretion in stopping and searching cars and their occupants through a series of

legalcases.

In United States v. Robinson,5 the Court ruled that a driver could be searched
without a search warrant - as long as there is probable cause - when arrested
for a traffic offense. In the Robinson case, a police ofﬁcer pulled Robinson over
and then arrested him for driving without a license. Upon Robinson’s arrest, the
ofﬁcer conducted a frisk search and found heroin in his possession. Though

Robinson argued that the search was illegal, the Court disagreed, ﬁnding the

110

ofﬁcer's actions reasonable, especially since the search was carried out
coextensively with the arrest. The Court extended police authority further,
allowing for full body searches in such circumstances as those of Gustafson v.
Florida.6 In this 1973 case, James Gustafson was pulled over by Lt. Paul Smith
of the Eau Gallie, Florida Police Department after Smith observed the car
Gustafson was driving weaving across several lanes of trafﬁc. When Gustafson
was unable to produce his drivers’ license, Smith promptly placed him under
arrest and conducted a thorough pat down search. He then reached inside
Gustafson’s jacket and extracted a cigarette box he found there. Inside the box
Smith found marijuana, which was introduced as evidence at trial. Gustafson put
forth the argument that the search exceeded the parameters of acceptable frisk
searches upon arrest, but the Court disagreed and afﬁrmed the lower court
ruling, which had upheld the conviction. The Robinson and Gustafson decisions
together grant the police wide latitude in conducting searches of persons being

arrested for traffic violations.

The Court has not, however, abandoned the probable cause requirement. In the
1979 case of Delaware v. Prouse,7 the Court reafﬁrmed the need for probable
cause even for those searches or seizures otherwise falling under the automobile
exception. William Prouse was stopped by a Delaware patrolman pursuant to a
routine drivers’ license check. There was no suspicious behavior such as erratic
driving on the part of Prouse that led to his car being stopped. However, when

the car was stopped, the ofﬁcer observed marijuana in plain sight on the ﬂoor of

111

the car and Prouse was then arrested for the illegal possession of a controlled
substance. Both the trial court and the Delaware appellate court agreed with
Prouse that the marijuana constituted evidence seized in violation of the 4th
Amendment’s prohibition against unreasonable searches and seizures. The
State of Delaware appealed to the Supreme Court, arguing that there should be
restraints placed on police ofﬁcer discretion in stopping cars for license and
registration checks because . . the State's interest in discretionary spot checks
as a means of ensuring the safety of its roadways outweighs the resulting
intrusion on the privacy and security of the persons detained.” The Court ruled
against the state in an 8-1 decision, disdaining the “unbridled discretion” the state
would grant law enforcement.

The marginal contribution to roadway safety possibly resulting from

a system of spot checks cannot justify subjecting every occupant of

every vehicle on the roads to a seizure - limited in magnitude

compared to other intrusions but nonetheless constitutionally

cognizable - at the unbridled discretion of law enforcement ofﬁcials.

To insist neither upon an appropriate factual basis for suspicion

directed at a particular automobile nor upon some other substantial

and objective standard or rule to govern the exercise of discretion

"would invite intrusions upon constitutionally guaranteed rights
based on nothing more substantial than inarticulate hunches . . . .'

In sum, the Court continued to recognize an automobile exception but
emphatically reafﬁrmed the necessity of probable cause — an articulable basis for

the stop.

There is a host of additional questions the Court has been faced with concerning
automobile searches. Cases before the Supreme Court bar have raised

questions such as: May police search the entire vehicle or only the passenger

112

compartment? Are boxes, suitcases and bags searchable, even if they are
closed? Is there a greater expectation of privacy for glove compartments and

trunks?

The Court’s jurisprudence on the legitimacy of searches of containers found in
automobiles represents a particularly interesting and important exercise in
constitutional line drawing. In United States v. Chadwick3 the Court held that the
search of a locked footlocker in the trunk of an automobile without a warrant was
invalid. The Chadwick case involved two defendants who were arrested and
charged with drug possession based on evidence removed from a locked trunk
the two had transported via train from San Diego to Boston. Ofﬁcials in Boston
had been notified by officials in San Diego when they had noticed the trunk was
extraordinarily heavy for its size and leaking talcum powder. The talcum powder
was suspicious because it was known to be used to mask the odor of certain
drugs. In addition, one of the defendants matched a drug trafﬁcker proﬁle used
by law enforcement. The defendants were placed under arrest upon their arrival
in Boston after the footlocker had been transported to the open trunk of their
waiting car. The police then transported the locked footlocker to the police
station were it was subsequently opened. The Court invalidated the search,
finding that the defendants were entitled to the 4th Amendment protection

extended by the Amendment’s warrant requirement.

113

In a subsequent “container" case, Robbins v. California,9 the Court speciﬁed that
the search of an opaque container found in the trunk of a car without a warrant
would not be permissible either. The California police had stopped Robbins after
observing his erratic driving. When the car door opened, the smell of marijuana
wafted out of the car, leading the highway patrol officers to suspect drug
possession. The ensuing search of the auto included a search of the luggage
compartment. In the luggage compartment the officers found two packages
wrapped in a green opaque plastic material (garbage bags), which they opened
and found marijuana bricks. Robbins was charged with and convicted of drug
possession, which conviction he appealed, ﬁrst to a state appellate court and

then to the U.S. Supreme Court.

The Court ultimately rejected the state’s contention that the nature of the
package distinguished it from traditional luggage, to which a greater expectation
of privacy attaches. This ruling was overturned, however, in United States v.
Ross. ’0 00 police officers, acting on a tip, pulled defendant Ross’s car over
and found a large quantity of heroin in the trunk. In a split 6-3 vote, the Court
concluded that the search was conducted with probable cause, making it
permissible under the 4th Amendment. Writing for the majority, Justice Stevens
said, “The rationale justifying a warrantless search of an automobile that is
believed to be transporting contraband arguably applies with equal force to any

movable container that is believed to be carrying an illicit substance.”

114

The Court also overturned its decision in Chadwick, which had invalidated the
warrantless search of a locked footlocker found in a car trunk in the 1991 case of
California v. Acevedo.11 The Acevedo case arose when Charles Acevedo was
arrested after officers witnessed him placing a package that looked like one
known to contain drugs — which were known to be in the apartment he had just
left - in his trunk. Earlier, law enforcement ofﬁcials in Hawaii had contacted the
Santa Ana Police Department to advise them that a package containing drugs
had just been intercepted. Arrangements were made to have the package sent
to the police in Santa Ana, who would then take the package to the Federal
Express ofﬁce it was originally to have been delivered to and wait to arrest the
party arriving to pick it up. Jamie Daza claimed the package and took it to his
apartment. It was Daza’s apartment that Acevedo was observed to be leaving

with the suspicious package.

Acevedo argued that the evidence used to convict him was obtained in violation
of the 4th Amendment. The California appellate court reasoned that the ofﬁcers
had probable cause to believe the package contained drugs but not to suspect
the car itself did, othenivise. Basing their decision on the Chadwick ruling, the
California Court of Appeals agreed with Acevedo, however, the Supreme Court
sided with the state of California and upheld Acevedo’s conviction. Blackmun,
writing on behalf of the Court majority, wrote deﬁnitively, “The interpretation of

the Carroll doctrine set forth in Ross now applies to all searches of containers

115

found in an automobile. In other words, the police may search without a warrant if

their search is supported by probable cause."

Impounded vehicles present yet another constitutional ambiguity for law
enforcement. The Court’s 1970 ruling in Chambers v. Maroney12 established that
inventory searches of impounded vehicles when occupants have been arrested
were permissible. The subsequent case of South Dakota v. Opperman,13
decided in 1976, gave police even further leeway by allowing inventory searches
of autos impounded for mere parking violations. Opperman had accumulated
numerous tickets for parking violations. Eventually the car was impounded by

the Vermillion, South Dakota police.

After the car had been moved to the impoundment lot, an officer noticed a
number of personal items clearly visible from outside the automobile, including a
wristwatch and other items on the dashboard, backseat and back floorboard.
The ofﬁcer used a standard inventory form employed by the police department to
inventory the items for safe keeping and, in the process, found marijuana.
Thought the lower court had held that the marijuana was seized evidence in
violation of the 4th Amendment, the Supreme Court disagreed and overruled the
lower court. The majority opinion noted in particular that the inventory was not a
pretext for an otherwise illegal search but part and parcel of routine police

procedure.

116

The Court’s ruling in United States v. Johns14 further extended the bounds of
permissible inventory searches, though the case did not directly involve the
search of an impounded vehicle. U.S. Customs officers were conducting a drug
investigation and engaged in ground and air surveillance of a remote private
airstrip in Arizona. They observed two pickups travelling to the airstrip
contemporaneously with the arrival and departure of two small aircraft. The
Customs officers approached the trucks and observed plastic wrapped packages
in them, wrapped in a fashion known to be commonly used for the packaging of
drugs. Officers placed Johns under arrest and took the trucks to the Drug
Enforcement Headquarters, where the suspected drug packages were placed in
storage. Three days later, officers opened the packages without obtaining a
warrant to do so. Subsequent tests proved that the contents were, in fact, illegal

drugs.

Johns argued at his trial that the drugs were seized illegally, a contention both
the federal trial court and the federal appellate court agreed with. When the case
reached the Supreme Court, however, the lower court decisions were reversed.
The Court likened the search to a standard inventory search and held the drugs
to have been seized legally. The Supreme Court essentially held that impounded
vehicles could be searched even when that search was not contemporaneous
with an arrest, thereby granting law enforcement even greater discretion for such

searches.

117

Advances in technology have often required the Supreme Court to revisit its
search and seizure jurisprudence to address concomitant novel legal
circumstances. The automobile represents one such advance in technology.
The Court has consistently distinguished the automobile from persons, homes,
etc., ﬁnding a lesser expectation of privacy associated with the automobile.
Supreme Court rulings on searches and seizures involving automobiles, their
passengers or drivers - in light of this lesser expectation of privacy — have
generally granted greater discretion to law enforcement while limiting the scope
of protection afforded individuals by the 4th Amendment. The automobile
exception to the warrant requirement has resulted in a sizable body of Supreme
Court case law and offers a promising venue for more precisely assessing the

response of state supreme courts to the direction of the U.S. Supreme Court.

The Automobile Search and Seizure Fact Pattern

Certainly there are unique elements in every automobile search and seizure
case, just as there are in every case involving the death penalty or raising privacy
claims. While case facts are characteristics specific to individual cases, in the
text of its decisions, the U.S. Supreme Court articulates generalized propositions
regarding the treatment of those case facts. The relevant specifics of each
automobile search and seizure can typically be captured via a small set of
characteristics. Collectively, these characteristics, coupled with the relevant

Supreme Court rulings, yield a precedent, or legal, model amenable to directly

118

testing the inﬂuence of the Supreme Court on decision making in state courts of

last resort.

To identify relevant automobile case facts, each U.S. Supreme Court automobile
search and seizure decision decided in the 1970-1990 period was read in its
entirety. There were a total of 45 such cases. The complete listing of cases
reviewed is reported in Appendix 4A. Careful review of these decisions,
suggested ﬁve relevant case facts with strong a prior reasons to suspect they will
be influential in disposing of such cases: if the search is of a driver or passenger,
if the search is incident to the arrest of the driver or passenger, if the search is an
inventory search, if the search is of a container in an automobile, and, if the

search is incident to a routine trafﬁc stop.

The Court has always extended greater protections to persons relative to homes,
commercial premises and automobiles. As noted earlier, the search of a driver
or passenger of an automobile elicits a tension between the greater protections
generally afforded persons and the automobile exception to the warrant
requirement. All else being equal, however, it is reasonable to suppose that a
search of a driver or passenger is less likely to be upheld when challenged than
a search of the vehicle itself. However, as Segal (1984, 1986) suggests, and the
Court has said in Robinson and Gustafson, searches pursuant to arrests are,
ceten's paribus, more likely to meet the burden of probable cause and, therefore,

automobile searches incident to the arrest of a driver or passenger should be

119

more likely to be upheld than those not accompanied by the arrest of a driver or

passenger.

The third automobile case fact with prima facie importance is whether or not the
challenged search is an inventory search. As noted above, the Court has
consistently permitted inventory searches, expanding the parameters of
permissibility over time. This suggests that if a challenged search is an inventory
search, the likelihood of it being upheld will be enhanced relative to non-inventory
searches. While it had already established the permissibility of inventory
searches in the 1970 Chambers case, the Court granted law enforcement even
greater discretion by allowing inventory searches of vehicles impounded for
parking violations in the Opperman ruling. The Opperman case signaled that the
Court was likely to broaden rather than restrict the scope of permissible inventory
searches. This suggests that post-Opperman inventory searches may be even

more likely to be upheld than inventory searches challenged prior to Opperman.

l next consider the expected effect on the likelihood of a challenged automobile
search being upheld when the search is of a container found in an automobile.
While the Court initially afforded greater protection against the search of
containers, reasoning that individuals have greater expectations of privacy when
they take pains to place objects in containers as opposed to leaving them in open
view, it subsequently circumscribed protections against container searches. The

1982 Ross decision is particularly interesting and useful for evaluating the

120

inﬂuence of precedent because it explicitly overturned previous rulings on the
permissibility of container searches. It abandoned the rationale of Robbins v.
California,15 which had held that a package whose contents are not in plain view
is not subject to search without a warrant. This suggests that pre-Ross container
searches are more likely to be upheld while post-Ross container searches are

less likely to be upheld.

Finally, I consider searches pursuant to trafﬁc stops and the Supreme Court’s
ruling in Delaware v. Prouse. Probable cause is a threshold requirement for all
searches. If the police stop a vehicle due to an observed infraction of motor
vehicle laws (e.g., expired license plates, erratic driving), the observed infraction
can be construed as probable cause for the stop. This suggests that the
likelihood of a search resulting from a routine trafﬁc stop being upheld will be
greater than one not resulting from a routine trafﬁc stop. In Delaware v. Prouse,
the Court re-emphasized the necessity of probable cause, signally the need for
more cautious evaluation of searches incident to routine trafﬁc stops. Thus,
while a search incident to a routine trafﬁc stop is more likely to be upheld, all else

held constant, the ruling in Prouse should dampen the effect.

The complete precedent model presented here includes ﬁve case characteristics
(person, arrest, inventory, container, trafﬁc stop) and three Supreme Court
rulings (Opperman, Ross, Prouse). The hypotheses, pertaining to both case

facts and Supreme Court rulings, are summarized for convenience in Table 4.1.

121

Table 4.1

Automobile Fact Pattern with Relevant Supreme Court Rulings

 

 

Independent Variable Expected Effect on Likelihood
of Upholding Search
Case Facts
Search of Person in Vehicle 1
Search Incident to Arrest of T
Driver or Other Occupant
Inventory Search T
Container Search I
Trafﬁc Stop T
U.S. Supreme Court Rulings
Inventory Search After T
Opperman
Container Search After Ross T
Trafﬁc Stop After Prouse I

 

T = increases likelihood of upholding challenged automobile search and seizure
I = decreases likelihood of upholding challenged automobile search and seizure

122

Appendix 4B contains a complete listing of the variables and their respective

coding while Appendix 4C reports relevant descriptive statistics.

The Automobile Search and Seizure Data

The data for this analysis consist of the universe of automobile search and
seizure cases decided by state courts of last resort from 1970 to 1990. They
were identiﬁed using West’s Decennial Digests covering the 1970-1990 period.
Each entry that appeared to identify an automobile search and seizure case was
then read in its entirety. If it was not an automobile search and seizure case, it
was excluded from the analysis. The unit of analysis is the search rather than
the case. In other words, if a particular court decision deals with the
permissibility of two different searches (e.g., the trunk of an automobile and an
occupant of the automobile) then that one decision yields two cases for analysis.

The number of searches identified for analysis through this process totals 326.

Table 4.2 reports the distribution of cases and observations (challenged
searches or seizures) by state. New York has the greatest number of automobile
search and seizure cases on the docket in the 1970-1990 period, with New
Jersey close behind. Only one state had no such cases on the docket for this
period, Delaware, but six states had only one or two. There is no obvious
regional groupings for either states with the greatest number of cases or those

with the fewest number of cases, as can be seen in Table 4.3. The distribution of

123

Table 4.2

Sample Distribution of State Supreme Court Search and Seizure Cases
by State

 

Region State Number of Court Number of
Decisions Observations

 

Middle West Illinois 6 6
Indiana 12 12
Michigan 3 3
Minnesota 7 7
Ohio 3 3
Wisconsin 6 6

Mountain Colorado 1 5 1 5
Idaho 2 2
Montana 7 7
Nevada 2 2
Utah 5 5
Wyoming 4 4

North East Connecticut 3 3
Delaware 0 0
Maine 9 9
Maryland 3 3
Massachusetts 1 4 1 4
New Hampshire 4 4
New Jersey 20 20
New York 21 21
Pennsylvania 10 10
Rhode Island 6 6
Vermont 1 1

 

124

Table 4.2 (c0nt’d.)

 

Paciﬁc

Plains

South East

South West

Alaska
California
Hawaii
Oregon
Washington

Iowa

Kansas
Missouri
Nebraska
North Dakota
South Dakota

Alabama
Arkansas
Georgia
Florida
Kentucky
Louisiana
Mississippi
North Carolina
South Carolina
Tennessee
Virginia

West Virginia

Arizona
New Mexico
Oklahoma
Texas

11

mammwmmmmhmh 01

01

10

12

CO-bUlUINQCﬂNCD-hOD-h

12

 

125

Table 4.2 (cont’d.)

 

Total 321 326

 

126

Table 4.3

Top and Bottom Rankings

 

 

 

 

 

 

Fewest Number of Cases

Number of State Region

Cases

0 Delaware North East

1 Hawaii Paciﬁc
Vermont North East

2 Idaho Mountain
Kentucky South East
Nevada Mountain
New Mexico South West

3 Arkansas South East
Connecticut North East
Maryland North East
Michigan Middle West
North Carolina South East
Ohio Middle West

Greatest Number of Cases

Number of State Region

Cases

21 New York North East

20 New Jersey North East

1 5 Colorado Mountain

14 Massachusetts North East

12 Indiana Middle West

1 1 California Paciﬁc
Nebraska Plains

10 Oklahoma South West
Pennsylvania North East

 

127

cases by year is reported in Figure 4.1. The absolute number of cases per year
typically cycles between 10 and 20, however, 1984 saw a high of 35 such cases
on the state supreme court dockets, with 1990 a close second in the number of

cases on the docket. Other than these two years, there are no obvious temporal

breaks in the data.

The dependent variable is a dichotomy, indicating whether a challenged search
or seizure was upheld (coded as 1) or struck down (coded as 0). To account for
the dichotomous nature of the dependent variable, logit was used for estimation.
The results of the logit analysis are reported in Table 4.4.16 With two exceptions
(one case fact and one Supreme Court ruling), the hypothesized relationships

are all borne out in the empirical analysis.

The results indicate that if the search is of a person, the likelihood of that search
being upheld if challenged is appreciably less than that of a search that does not
involve the driver or passenger. In fact, the person case fact has the greatest
impact as evidenced by its marginal effect: if the challenged search is of the
driver or passenger of an automobile, the likelihood of a challenged automobile
search being upheld decreases by 27 percent for a search that othenlvise has a
50-50 chance of being upheld. This result is not surprising given the previously
noted Supreme Court’s concern with the intrusiveness of searches of individuals
as opposed to automobiles themselves. If, however, the challenged search is

incident to the arrest of the driver or a passenger, the search is more likely to be

128

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129

Table 4.4

Logit Estimation of Precedent Model
State Supreme Court Automobile Search and Seizure Decision Making

 

 

 

1970-1990
Independent Parameter Robust Standard Marginal Expected
Variable Estimate Error Effecta Effect
Person -1.07* 0.41 -0.27 B < 1
Incident to Arrest 0.41* 0.02 0.10 (3 > 1
Inventory Search 030* 0.09 0.08 I3 > 1
After Opperman 0.11* 0.03 0.03 I3 > 1
Container Search 043 0.72 [3 < 1
After Ross 013* 0.11 0.03 (3 > 1
Trafﬁc Stop 045* 0.23 0.11 (3 > 1
After Prouse 0.13 0.12 B < 1
Constant 1 .45* 0.23
Temporal Effects
1984 0.15* 0.07 -
1985 0.1 1* 0.06 -
1987 012* 0.11 --
N 326
% searches upheld 81%
% correctly 89%
predicted
PRE 42.1%
12 51 1.89
* Signiﬁcant at or s 0.05.

’ Marginal effects are calculated on the basis of a baseline probability of 0.5.

% correctly predicted — % modal cateogry
100% - % modal cateogry

 

PRE: 100% *

130

upheld compared to those searches not accompanied by an arrest: the likelihood

of being upheld increases by 10 percent.

Inventory searches are also more likely to be upheld when challenged than a
non-inventory search, with an enhance likelihood of an inventory search being
upheld after the Supreme Court’s Opperman ruling. For an automobile search
with a prior likelihood of being upheld of 50 percent, the likelihood is increased by
8 percent if it is an inventory search. The Opperman ruling results in an
additional increase in the likelihood of an inventory search being upheld of 3

percent.

With regard to container searches, the analysis indicates that, while the
likelihood of a challenged search being upheld is unaffected by whether or not
the search is of a container prior to the Ross ruling, such a search is more likely
to be upheld if it post-dates the Ross ruling. Speciﬁcally, when a search has a
50-50 chance of being upheld, the likelihood of it being upheld is enhanced by 3

percent by the Ross ruling.

A search incident to a trafﬁc stop is also more likely to be upheld. In fact, the
trafﬁc stop case fact has the second greatest effect on the likelihood of a
challenged search and seizure being upheld, increasing the likelihood by 11
percent for a challenged search with an a prior probability of being upheld of 0.5.

Though the trafﬁc stop variable itself manifests an impact, the relevant Supreme

131

Court ruling relating to traffic stops, Delaware v. Prouse, does not. My post hoc
speculation is that perhaps the relative anonymity of the Prouse ruling accounts
for the nonexistent effect it has on state automobile search and seizure decision
making. However, the Opperman case is also a relatively lesser known case.
Perhaps the real question is not why Prouse did not have an effect but why
Opperman did. The answer may lie in the nature of the case facts each of these
decisions involves. The Opperman ruling deals with the very speciﬁc extent of
permissible inventory searches. The Prouse ruling, on the other hand, deals with
the much more nebulous concept of probable cause. The import of the
Opperman ruling may simply have been more easily apprehended by state
supreme courts than that of the Prouse ruling. Alternatively, the lack of effect for
the Prouse ruling may be a function of the fact that it did not signal a change in

Supreme Court policy, merely a change in emphasis.

Conclusion

The overall performance of the model is more than respectable. Despite the fact
that state supreme courts uphold challenged searches the majority of the time,
the precedent model correctly predicts almost 90 percent of the cases and has a
reduction in error of over 40 percent. The empirical results provide at least some
evidence that it is not just the particular elements of a search or seizure that
inﬂuence the state supreme court decision but also the U.S. Supreme Court’s

handling of those elements, at least in automobile search and seizure

132

jurisprudence. The evidence corroborates the findings of Chapter Three. To wit,
state supreme courts do evidence faithfulness to their superior, the U.S.
Supreme Court. To be sure, however, the effects of the Opperman and Ross

rulings are quite small in comparison to the effects of the relevant case facts.

Collectively, these ﬁndings are of particular interest in light of the fact that the
automobile case fact did not achieve statistical signiﬁcance for state supreme
courts in Chapter Three. This indicates that the automobile case fact is too
broad in terms of the scope of the searches subsumed under it. Automobile
searches are not homogenous with respect to the stimuli they present. Rather,
the circumstances of an automobile search condition the likelihood of it being

upheld.

There is a caveat to be made. A plausible alternative explanation is that the
observed conformity has little to do with what the Supreme Court says and does
and everything to do with the preferences of state electorates and strategic
calculations on the part of state supreme court judges. A deﬁning characteristic
of state judiciaries is their diversity. As discussed earlier in Chapter One, they
have different organizational plans, different nomenclature and different
institutional designs. One important institutional feature that varies across the
states is the method of selection. Members of state courts of last resort may
achieve and retain their seats via election, appointment or some hybrid

procedure (e.g., merit selection). Regardless of how they ascend to or remain

133

on the bench, state supreme court judges no doubt do not wish to lose their
positions, ceteris paribus. Given this, judges subject to selection or retention via
some form of popular election are likely to be sensitive to the preferences of the
citizenry in ways appointed judges are not. Perhaps the observed behavior is a
function of sensitivity to citizenry preferences rather than Supreme Court

precedent.

In the next chapter I disentangle these sorts of alternative explanations by

extending the precedent model to include variables that measure salient

elements of preferences, institutions and context.

134

Chapter Four Notes

‘ 267 U.S. 132 (1925).

2 267 U.S. 132 (1925) at 153-154.

3 399 U.S. 42 (1970).

4 392 U.S. 1 (1968).

5 414 U.S. 218 (1973).

6 414 U.S. 260 (1973).

7 440 U.S. 648 (1979).

8 433 U.S. 1 (1977).

9 453 U.S. 420 (1981).

‘° 456 U.S. 798 (1982).

1' 500 U.S. 565 (1991).

‘2 399 U.S. 42 (1970).

‘3 428 U.S. 364 (1976).

‘4 469 U.S. 478 (1985).

‘5 453 U.S. 420 (1981).

‘6 Standard diagnostics were conducted. It is unlikely that each observation is
completely independent of the others since there is more than one observation
per state for most states. To account for this, the model was estimated using
robust standard errors. As Appendix 4D reports, there is no indication of
multicollinearity. Further, testing for unit effects with the use of state dummies
did not indicate the need to control for unit effects. Testing for temporal effects
did, however, indicate the need to include dummy variables for 1984, 1985, and
1987. While it would be preferable not to use dummy variables, omitting them
when they are, in fact, needed may result in incorrect inferences as to the
statistical significance of the substantively important variables. Using the
procedure outlined in Chapter 3 Appendix F, tests for inﬂuential and outlying

cases were conducted. The results indicated seven outliers, however, the
substantive results were not appreciably affected by removing them from the

135

sample. The final results were estimated with the inclusion of those observations
in the absence of any theoretical justiﬁcation for doing so.

136

APPENDIX 4A

United States Supreme Court Automobile Search and Seizure Decisions
1970-1990

Adams v. Williams 32 L. Ed. 2d 612 (1972)
Alabama v. White 110 L. Ed. 2d 301 (1990)
Almeida-Sanchez v. United States 37 L. Ed. 2d 596 (1973)
Arkansas v. Sanders 61 L. Ed. 2d 235 (1979)
Brower v. lnyo County 103 L. Ed. 2d 628 (1989)
Brown v. Texas 28 L. Ed. 2d 868 (1971)

Cady v. Dombrowski 37 L. Ed. 2d 706 (1973)
California v. Carney 85 L. Ed. 2d 406 (1985)
Cardwell v. Lewis 41 L. Ed. 2d 325 (1974)
Chambers v. Maroney 26 L. Ed. 2d 419 (1970)
Colorado v. Bannister66 L. Ed. 2d 1 (1980)
Colorado v. Bertine 93 L. Ed. 2d 739 (1987)
Coolidge v. New Hampshire 29 L. Ed. 2d 564 (1971)
Delaware v. Prouse 59 L. Ed. 2d 660 (1979)

Florida v. Meyers 80 L. Ed. 2d 381 (1984)

Florida v. Wells 109 L. Ed. 2d 1 (1990)

Gustafson v. Florida 38 L. Ed. 2d 456 (1973)
Harless v. Turner 30 L. Ed. 2d 245 (1971)
Massachusetts v. Podgurski 75 L. Ed. 2d 464 (1983)
McCommon v. Mississippi 88 L. Ed. 2d 345 (1985)
Michigan v. Long 77 L. Ed. 2d 1201 (1983)
Michigan v. Thomas 73 L. Ed. 2d 750 (1982)
Mi/hollan v. United States 62 L. Ed. 2d 144 (1979)
New York v. Belton 69 L. Ed. 2d 768 (1981)

New York v. Class 89 L. Ed. 2d 81 (1986)
Pennsylvania v. Mimms 54 L. Ed. 2d 331 (1977)
Rakas v. Illinois 58 L. Ed. 2d 387 (1978)

Rhode Island v. DeMasi 69 L. Ed. 2d 948 (1981)
Robbins v. California 69 L. Ed. 2d 744 (1981)
Schneckloth v. Bustamonte 36 L. Ed. 2d 854 (1973)
Sifuentes v. United States 49 L. Ed. 2d 1116 (1976)
South Dakota v. Opperman 49 L. Ed. 2d 1000 (1976)
Texas v. Brown 75 L. Ed. 2d 502 (1983)

Texas v. White 46 L. Ed. 2d 209 (1975)

137

United States v. Bn’gnoni-Pounce 45 L. Ed. 2d 607 (1975)
United States v. Chadwick 53 L. Ed. 2d 538 (1977)
United States v. Cortez 66 L. Ed. 2d 621 (1981)

United States v. Johns 83 L. Ed. 2d 890 (1985)

United States v. Martinez-Fuerte 49 L. Ed. 2d 1116 (1976)
United States v. Ortiz 45 L. Ed. 2d 623 (1975)

United States v. Robinson 38 L. Ed. 2d 427 (1973)
United States v. Ross 72 L. Ed. 2d 572 (1982)

United States v. Sharpe 73 L. Ed. 2d 1345 (1982)

United States v. Watson 46 L. Ed. 2d 598 (1976)
Whiteley v. Warden 28 L. Ed. 2d 306 (1971)

138

APPENDIX 4B
Automobile Search and Seizure Variable Coding
DEPENDENT VARIABLE
SEARCH2 1 = challenged automobile search is upheld

0 = challenged automobile search is invalidated

AUTOMOBILE SEARCH AND SEIZURE CASE FACTS
INVENTORY 1 = search of automobile is inventory search
0 = otherwise
CONTAINER 1 = search of container in automobile
0 = othentvise
TRAFFIC 1 = search incident to routine trafﬁc stop

0 = otherwise

UNITED STATE SUPREME COURT VARIABLES

OPPERMAN 1 = post-Opperman inventory search of car automobile
0 = otherwise

ROSS 1 = post-Ross search of container in automobile
0 = otherwise

PROUSE 1 = post-Prouse search incident to routine trafﬁc stop

0 = otherwise

139

STATE VARIABLES

DEMOCRATIC

PARTISAN

NONPARTISAN

MERIT

IDEOLOGY

CRIME

1 = majority of state supreme court judges hearing case
Democrat

0 = otherwise

Source: Brisbin and Kilwein (1998)

1 = state supreme court judges retained via partisan election

0 = othenivise

= state supreme court judges retained via nonpartisan

election

0 = othentvise

1 = state supreme court judges retained via merit system

0 = otherwise

0 (most conservative) — 1 (most liberal)

Source: Berry et al. (1998)

violent crime per 1000 per state-year

Source: Bureau of Justice Statistics, various years

140

APPENDIX 4C
Table 4A.1

Automobile Search and Seizure Descriptive Statistics

 

 

variable minimum maximum mean
Person 0 1 0.542
Arrest 0 1 0.311
Inventory 0 1 0.213
Container pre Ross 0 1 0.358
Container post Ross 0 1 0.172
Trafﬁc 0 1 0.427
Opperman 0 1 0.340
Prouse 0 1 0.574

 

141

APPENDIX 4D
Multicollinearity

The correlation matrix below indicates that there is no multicollinearity, as there is
no correlation that exceeds 3: 0.69.

PERS ARRE INVE CONB CONA TRAP OPPE PROU

 

PERS 1.000

ARRE 0.691 1.000

INVE 0.124 0.211 1.000

CONT 0.089 0.078 0.187 1.000

CONT 0.014 0.069 0.192 0.211 1.000

TRAF 0.577 0.621 0.215 0.375 0.455 1.000

OPPE 0.067 0.421 0.229 0.461 0.479 0.271 1.000

PROU 0.087 0.537 0.484 0.273 0.265 0.291 0.112 1.000

 

142

CHAPTER FIVE

PRECEDENT, PREFERENCES, INSTITUTIONS, AND CONTEXT

In the previous chapter, I developed and tested a precedent, or legal, model of
state supreme court decision making and found that the disposition of state
supreme court automobile search and seizure decisions appears to depend
largely on the facts of the case and, in part, on relevant U.S. Supreme Court
rulings. Some students of judicial impact have been quite critical of the use of
areas of law likely to elicit noncompliance as arenas for testing the extent of
noncompliance (e.g., Baum 1978, Songer 1987, Reid 1988). Since search and
seizure cases clearly represent such an area of law, in light of societal concerns
with crime and the fact that these cases most often pit the prerogatives of
government against the rights of the criminally accused, the ﬁndings reported are
very suggestive that legal stimuli (case facts and precedent) are important for

state supreme court decision making.

However, legal stimuli represent but one force in the decisional milieu within
which state supreme courts operate. Members of state supreme court benches,
no less than U.S. Supreme court justices, have their own ideological and policy
preferences and would likely wish to advance them in their decision making given
the appropriate opportunity. In addition, each state supreme court functions
within its own unique political context and there are institutional differences
among state courts of last resort that are likely to condition the salience of these

vanousinﬂuences.

143

The objective of this chapter is to elaborate on the precedent model presented in
Chapter Four, extending it into an integrated model that includes salient elements
of the political, contextual, and institutional landscape to understand the
conditions under which state supreme courts are faithful to their superior, the
United States Supreme Court. The literature is replete with examples of
scholarship demonstrating the importance of understanding context in order to
understand judicial behavior (e.g., Emmert and Traut 1994, Brace and Hall 1995,
Brace, Hall and Langer1996, Fleming, Holian and Mezey 1998). Little to none of
it, however, explicitly tests the importance of context to determine the faithfulness

of lower courts to superior courts.

There are only a very few rigorous, comparative state analyses (Brisbin and
Kilwein 1994, Songer 2000). There are comparative analyses of, for example,
compliance on the part of the individual circuits of the federal appeals court (e.g.,
Benesh 1997). Unfortunately, there is little to no institutional variation across
circuits. On the other hand, as Hall and Brace (1999) have recently commented,
state supreme courts offer unique opportunities for the development of general
theories of judicial choice. With regard to judicial compliance, the variation in
external environment and institutional features afforded by the use of a
comparative state approach allows for a more precise test of the extent to which
state supreme courts are truly faithful to their superior, the U.S. Supreme Court.
Developing an integrated model and then subjecting it to empirical validation will

enable me to evaluate any added utility the institutional model of judicial impact I

144

have proposed may contribute to our understanding of judicial impact over and

above a legal model.

The strong performance of the precedent model would be unremarkable if the
only goal lower court judges had was to fulﬁll a legal obligation of obedience to
their superiors. However, depending upon the sort of case involved, judges are
no doubt also attentive to the preferences of other actors in the state political
system. In the case of judicial review, for example, there is a theoretical link
between the state supreme courts and the state legislatures and governors they
are engaging in the separation of powers game of which judicial review is a part.
When a state court of last resort invalidates a state statute, the governor and/or
the legislature may be able to sanction recalcitrant judges through their role in
judicial retention (depending upon the state). More likely, they may be able to
enact legislation that, in effect, results in a legislative veto of the judicial decision.
The nature of search and seizure decision making, however, provides little

reason to expect it to be influenced by the more traditional state policy actors.

Judicial review cases in the American states typically involve the arbitration of
constitutional challenges to state statutes. Depending upon the opportunities for
popular involvement such as initiative or referenda processes, a court may
instead be reviewing an enacted or proposed initiative or referendum. But, when
a state supreme court is engaged in disposing of 4th Amendment challenges to

law enforcement searches or seizures, there is no “search and seizure” statute

145

upon which the state supreme court is passing judgment. In the vast majority of
search and seizure cases, a criminal defendant is challenging how the police
ofﬁcer obtained evidence introduced to prove the defendant’s guilt. To be sure, a
statute is involved since the defendant has been charged with a violation of the
criminal code. But when the defendant claims a violation of his or her 4th
Amendment rights, the court is not passing judgement on the constitutionality of
the criminal code under which the defendant was charged. Rather, it is the
actions of law enforcement that are challenged. Thus, when a state supreme
court renders a decision regarding a challenged search or seizure, there is no

statute that has been overturned to invite legislative reversal.1

A more likely adverse reaction may be expected from the electorate. Judges
who must face the electorate to remain in ofﬁce have every incentive to avoid
making decisions that can provide fodder for electoral opponents. Taking an
institutional perspective has yielded remarkable windfalls for students of state
judicial politics studying the effects of judicial retention. Scholars have
demonstrated a definite sensitivity of elected judges to the preferences of their
constituencies. There has been a special focus in the literature on death penalty
decisions (e.g., Hall 1992, Emmert and Traut 1994, Hall and Brace 1996, Traut
and Emmert 1998) but there is no reason to suspect that the lessons Ieamed will

not travel to other areas of criminal jurisprudence, such as search and seizure.

146

The discussion of goals in Chapter Two coupled with insights from the new
institutional judicial literature should make it clear that any assessment of the
influence of the Supreme Court on the decision making of state supreme courts
must take into account, not only the preferences of the lower court judges vis-a-
vis those articulated in the Supreme Court’s ruling, but also the preferences of
the electoral constituency and the institutional feature (elections) that allow them
to sanction judges for unpopular rulings. In sum, a realistic and comprehensive
model of judicial impact needs to reintroduce context and institutions.
Fortunately, the model of automobile search and seizure decision making
articulated in Chapter Four can be extended to integrate important political,
institutional, and contextual forces. Doing so is the focus of the remainder of this

chapter.

Operationalizing an Institutional Model of Judicial Impact

Legal Factors. The precedent (or legal) model articulated in the previous chapter
forms the nucleus of the integrated institutional model of judicial compliance
developed here. I begin with the legal stimuli of case facts and relevant Supreme
Court rulings. The hypothesized effects of these variables in the integrated
model are exactly the same as presented in Chapter Four. Speciﬁcally, the
search of a driver or passenger is less likely to be upheld than the search of the
auto itself. A dummy variable is coded as one if the search is of a driver or

passenger, and coded 0 otherwise. Further, a container search is less likely to

147

be upheld generally but the likelihood of it being upheld should be enhanced by
the Ross ruling. Thus, one dummy variable is coded as 1 if the challenged
search is of a container, and coded 0 othenivise, while another is coded 1 if the
challenged search is of a container search after Ross, and coded 0 otherwise.
So, too, should the likelihood of a search being upheld increase when it occurs
incident to an arrest or pursuant to a traffic stop. Each of these case facts gives
rise to a dummy variable, coded 1 if the search is incident to arrest or pursuant to
a traffic stop, respectively, and coded as 0 otherwise. An inventory search is
more likely to be upheld, ceteris paribus, than a non-inventory search. A dummy
variable for inventory searches is coded 1 if the challenged search is an
inventory search, and coded 0 otherwise. I also hypothesize that inventory
searches after Opperman will be even more likely to be upheld than those
challenged prior to Opperman. Thus, a dummy variable is coded as 1 if the
challenged search is an inventory search after Opperman. On the other hand,
searches incident to a trafﬁc stop after Prouse should be less likely to be upheld,
given the emphasis on requisite probable cause for all automobile stops
engendered in the Prouse decision. This gives rise to a dummy variable coded
as 1 if the challenged search is incident to a trafﬁc stop after the Prouse ruling,

and coded as 0 otherwise.

The contours of the legal landscape within which state supreme courts operate

extends beyond the speciﬁc case facts at hand and rulings rendered by the

United States Supreme Court. There are also legal elements speciﬁc to

148

individual states. In particular, each state has its own unique constitution. Every
state with the exception of Arizona and Washington has a specific provision in its
constitution regarding the permissibility of searches and seizures.2 In forty—one
states, the language of the state constitutional provision is virtually the same as
the 4th Amendment of the federal constitution, with only minor deviations in
phrasing. In four other states (Hawaii, Illinois, Louisiana and South Carolina), the
language is very similar to the federal exemplar with the addition of a speciﬁc
reference to invasions of privacy. For example, Article I, § 10 of the South
Carolina Constitution reads as follows:

The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures

and unreasonable invasions of privacy shall not be violated, and no

warrants shall issue but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched,

the person or thing to be seized, and the information to be

obtained.
The word “privacY’ is to be found no where in the federal constitution, although
the Court has found a privacy right to inhere in the language of the Constitution.
Thus, the inclusion of the “invasions of privacy” phrase arguably provides a

broader umbrella of protection than does the federal constitution’s 4th

Amendment’s language.

In the remaining three states, the relevant language is less expansive than the 4th
Amendment of the federal constitution, more narrowly focusing on the issuance
of warrants. For example, Article I, § 10 of the Virginia Constitution reads as

follows:

149

That general warrants, whereby an ofﬁcer or messenger may be
commanded to search suspected places without evidence of a fact
committed, or to seize any person or persons not named, or whose
offense is not particularly described and supported by evidence, are
grievous and oppressive, and ought not to be granted.

The full text of the relevant provisions of state constitutions is reported in

Appendix 5A.

In light of these differences, and to assess the effect of the state legal context on
automobile search and seizure decision making I include two dummy variables.
The first is intended to isolate any tendencies toward greater individual
protections (and concomitant decreases in the likelihood of a challenged search
or seizure being upheld) based on more protective state constitutional provisions.
This variable is coded as 1 for those states in which the constitutional search and
seizure provision goes beyond the language of the federal constitution to specify
protections against invasions of privacy, and coded 0 otherwise. The second
dummy variable is intended to control for potential increases in the likelihood of a
challenged search or seizure being upheld based on less protective state
constitutional provisions relative to the protections afforded defendants by the 4th
Amendment. This variable is coded as 1 for those states that either lack of
speciﬁc search and seizure provision or have provisions that are less protective

than the 4th Amendment to the U.S. Constitution, and coded 0 otherwise.

There are two additional characteristics of search and seizure cases that must be

taken into account in any comprehensive model of their disposition. First, the

150

underlying crime for which the search or seizure is being challenged may range
from petty larceny to murder. Some cases are likely to elicit stronger responses
than others, depending upon the underlying criminal charge. Judges may
perceive a greater risk in invalidating a challenged search or seizure when the
crime is of a serious nature. To account for this possibility, I include a control
variable to indicate whether or not the criminal charge or conviction at stake is for
murder, with the expectation that such cases are more likely to be upheld than
those for less serious offenses. A dummy variable is coded as 1 if the underlying

offense is a murder charge, and coded as 0 otherwise.

The second additional characteristic of importance is the disposition of the case
by the lower court. If the lower court hearing the case prior to the state supreme
court upheld the search or seizure, members of the state supreme court bar are
more likely to uphold it themselves, giving at least some deference to the judge
or judges below. Conversely, if the lower court has overturned a challenged
search or seizure, we might well expect this to concomitantly decrease the
likelihood that the state supreme court majority will uphold it. Again, state
supreme court judges no doubt rely to some extent on cues from the lower courts
from which cases are appealed. If a lower court judge, operating within the same
state legal culture, has deemed a particular search as questionable then this may
predispose the state supreme court bench to do likewise. Controlling for this
possibility is a simple matter of including an indicator variable for whether or not

the lower court upheld the challenged search or seizure. A dummy variable is

151

coded as 1 if the lower court upheld the challenged search or seizure, and coded

as 0 otherwise.

Preferences. The next step in the construction of an integrated model of judicial
impact is the inclusion of an attitudinal dimension. In ideological terms, it has
been well established that invalidating a challenged search or seizure represents
a more liberal position than upholding a challenged search or seizure. (e.g.,
Segal 1984, 1986, Segal and Spaeth 1993). Liberal judges tend to side with
criminal defendants, weighing the balance between the rights of the criminally
accused and the police powers of the state in favor of the former. Conservative
judges, on the other hand, favor the prerogatives of law enforcement over the
rights of the criminally accused. Accordingly, a court with a majority of liberal
members is less likely to uphold a challenged search or seizure than one

comprised of a majority of conservative members.

Though measuring ideological preference via partisan identiﬁcation is less than
optimal (Brace, Langer and Hall 1998), it is currently the best publicly available
measure for state supreme court judge ideology. I hypothesize that a state
supreme court with a Democratic majority will be less likely to uphold a
challenged search or seizure than one with a Republican majority. However,
both Hall and Brace (1996) and Traut and Emmert (1998) provide empirical
evidence that judicial preferences can be inﬂuential in more than one way, at

least in the context of death penalty decisions. These pairs of researchers

152

demonstrate that the preferences of the judicial decision maker may enter into
the decision-making calculus both as a direct inﬂuence and as a mediating
influence on the effect of case facts. In particular, Traut and Emmert, in their
study of the California Supreme Court, find that the effect of legal issues (e.g.,
claim of racially discriminatory jury retention, known as Wheeler-Batson error) is
more pronounced for conservative justices. And, in their eight state study, Brace
and Hall ﬁnd Democratic supreme court judges less likely to support the death
penalty in murder cases involving rape or multiple victims than Republican
judges but more likely to support it when children or the elderly are murdered.
Brace and Hall conclude “that contextual forces are important inﬂuences on
judicial behavior and that processes as seemingly straightforward as the
interpretation of case facts are not immune to this influence" (1996, 254). While
these two studies deal specifically with the imposition of the death penalty, there
is no reason to expect that the mediating effects of preference are limited to this

substantive area.

With respect to the automobile search and seizure case facts, there are no clear
a priori expectations as to the direction of effect of preference on the use of case
facts. Neither the Traut and Emmert nor the Hall and Brace studies provide
guidance given the lack of overlap in legal stimuli between the death penalty and
the search and seizure cases. One plausible hypothesis, however, is that the
effect of each case fact will be reinforced by the preferences of the decision

makers: those facts that decrease the likelihood of a challenged search being

153

upheld will be even more likely to do so in state supreme courts with Democratic
majorities; on the other hand, those facts that increase the likelihood of a
challenged search being upheld will be even more likely to do so in state

supreme courts with Republican majorities.

To evaluate the potential differential inﬂuence of policy preference on the role of
case facts, and the effect of policy preferences more generally, I analyze state
supreme courts with Democratic majorities separately from state supreme courts
with Republican majorities. This allows for a comparison of the effects of each of
the independent variables to discern if there are ideological differences, as
captured via partisan affiliation. Further, when estimating the model for state
supreme courts with Democratic majorities, I include a dummy variable coded as
1 if the court majority is comprised of southern Democrats, and coded as 0
otherwise, to control for the notion that southern Democrats are more

conservative than their northern counterparts.

Context. The preferences of the decision makers may not only serve to modify
other influences but may also be the subject of modification — or at least, subject
to modification in their expression. In particular, the relationship between a
Democratic majority and the likelihood of invalidating a challenged search is
likely to be attenuated when members of the bench are retained via electoral
means. In light of seat retention as an operative goal for the majority of state

supreme court members, state supreme courts with Democratic majorities

154

selected via elections should be more likely to uphold a challenged search or
seizure as the state citizenry becomes more conservative. Considering the
general tenor of political campaigns, the relationship is unlikely to be
symmetrical; is, that a state supreme court with a Republican majority retained
via elections should be more likely to strike down a challenged search or seizure
as the state citizenry becomes more liberal. It may be commonplace to depict a
political opponent as soft on crime, but characterizing an opponent as too tough

on crime is an unlikely ploy.

In the American states there are three primary types of judicial retention
mechanisms: partisan, nonpartisan, and merit. Partisan election ballots include
the candidates’ partisan affiliation while nonpartisan election ballots exclude this
information.3 Merit retention typically involves initial appointment by the governor
with the appointed judge subsequently standing for retention via popular election.
As recent empirical research has demonstrated (Hall 1998, 1999a, 1999b), all
elections are not created equal. Most importantly in the present context, there is
considerable variation in the level of competitiveness across types of elections.
The import of this empirical reality lies in the link between electoral
competitiveness and the likelihood of sanction (i.e., being removed from office).
As one scholar has observed,

. . . [A]ccountability is established simply through the threat of

electoral challenge and defeat, which often is not realized, and by

competitive electoral conditions in the external political

environment. Anticipated competition and actual competition link

public ofﬁcials to the citizenry, quite apart from voter turnout or
electoral defeat (Hall 1998, 5).

155

Partisan elections are typically associated with the highest levels of competition,
followed by nonpartisan elections and merit retention. Accordingly, in terms of
the likelihood of possible sanction (i.e., removal from ofﬁce), partisan elections
pose the greatest risk to an incumbent state supreme court judge, followed by

nonpartisan elections and retention elections.

While the method of judicial retention defines one dimension of sanction
likelihood, citizenry preferences define the other. It is the nexus between
citizenry preferences and judicial retention that scholars have theorized as
inﬂuencing judicial decision making. Students of state politics are fortunate to
have at their disposal a measure of citizenry ideological preferences that varies
both by state and year. Berry and his colleagues (1998) have derived a measure
of citizenry ideology using interest group ratings, with a theoretical range from 0

(most conservative) to 1 (most liberal).

Juxtaposing what we know about competitiveness and judicial elections with the
ideological preferences of state electorates leads to the hypothesis that state
supreme courts with Democratic majorities retained via elections will be more
likely to uphold a challenged search or seizure as the state citizenry becomes
more conservative. Given the increasing levels of competitiveness associated
with judicial elections as we move from merit retention to nonpartisan elections to
partisan elections, I expect the relationship between a Democratic majority on the

court and the likelihood of upholding a challenged search to be most attenuated

156

in the presence of partisan retention, less attenuated in the presence of
nonpartisan retention and least attenuated in the presence of merit retention. In
each case, the comparison is to courts in which retention is dependent upon

legislative or gubernatorial action.

To ascertain the method of judicial retention, l consulted numerous sources,
including various editions of the Book of the States and the American Bench,
information disseminated by individual state court websites and the National
Center for State Courts, as well as, in two instances, phone calls to the state
court administrator’s ofﬁce. Note that I am concerned with the method of judicial
retention rather than the method of initial judicial selection. So, for example,
although judges serving on the Illinois and Pennsylvania supreme courts are
initially chosen through partisan elections, to remain in office the members of that
court run in retention races in which the electorate is asked to cast a yes or no
vote as to whether or not the supreme court judge should remain in office. Thus,
observations from Illinois and Pennsylvania regarding the permissibility of
challenged searches and seizures are coded as 0 on the partisan and

nonpartisan election dummy variables and as 1 on the retention election variable.

Given the substantive nature of search and seizure cases, there is an additional
variable that warrants inclusion in any comprehensive model of search and
seizure decision making: the crime rate. A concern with Crime cuts across

socio-economic lines. Citizens, including judges, are likely to be more concerned

157

with freeing the guilty than jailing the innocent when they perceive that crime is
running rampant. It would be ideal to have a measure of perceptions regarding
crime that varies both across states and across time. In the absence of such a

measure, however, the crime rate by state and year is a suitable surrogate.

Of course, there is not a perfect correlation between the actual crime rate and the
perception of crime. But, I would argue that at least some notion of the crime
rate seeps into public awareness through the media resulting in a positive, if not
perfect, relationship between the crime rate and perceptions of crime. In other
words, I anticipate a positive relationship between the crime rate and the
likelihood of a challenged search or seizure being upheld. There is apt to be an
even stronger correlation between actual crime rate and perceptions of and
concern with crime when the crime rate is measured in terms of highly salient ‘
crimes in the public’s estimation, violent crimes. Violent crimes rather than petty
offenses are what capture the news media’s fancy and find their way into publicly
consumed news. This leads to the inclusion of violent crime per 1000 population
as a control variable. However, a stronger case can be made for the relationship
between crime rate and perceptions of crime when the crime rate is lagged to
allow for the information to percolate through society. Thus, violent crime per

1000 population is lagged by one year.

The complete set of hypotheses, both those related to institutions and context as

well as those related to case facts and Supreme Court rulings, is summarized for

158

Table 5.1

Integrated State Supreme Court Automobile Search and Seizure Decision
Making Model Hypotheses

 

Independent Variable Expected Effect on Likelihood
of Upholding Search

 

Case Factors
Person

Incident to Arrest
Inventory Search

After Opperman
Container Search

After Ross
Trafﬁc Stop

After Prouse
Murder Case
Lower Court Ruling

——)—-><——>——><———->—>—-)<—

Context

State Constitution More
Protective

State Constitution Less
Protective

Citizen Ideology

Partisan Retention
Nonpartisan Retention

Merit Retention

Cit. ldeol. X Partisan Retention

Cit. ldeol. X Nonpartisan
Retention

Cit. Ideol. X Merit Retention
Murder Rate

—>-—> —)—>—>—)—+—> —> (—

 

T = increases likelihood of upholding challenged automobile search and seizure
I = decreases likelihood of upholding challenged automobile search and seizure

159

convenience in Table 5.1. The complete coding of the variables is included in

Appendix 48 of Chapter Four. Descriptive statistics are reported in Appendix 58.

Data and Analysis

To test the integrated model I use the same set of cases used in testing the
precedent model of Chapter Four: the universe of automobile search and
seizure cases, 1970-1990. Again, the estimation technique of choice is logit.4
The results prove to be most interesting and are reported in Table 5.2 for courts

with Democratic majorities and in Table 5.3 for courts with Republican majorities.

Consider first the results of estimating the integrated model for courts with
Democratic majorities. Each of the ﬁve case facts manifests an effect on the
likelihood of a challenged search or seizure being upheld in line with the
hypothesized relationships. Searches of persons in the vehicle are less likely to
be upheld than are searches of the vehicle itself. For a search with a prior
probability of being upheld of 0.5, the search of a person is 15 percent less likely
to be upheld than the search of the vehicle itself. A container search also
decreases the likelihood of being upheld in the state court of last resort,
decreasing the likelihood by 6 percent for a search that otherwise has a 50-50
chance of being upheld. In contrast, searches incident to an arrest, inventory

searches and searches incident to trafﬁc stops are all more likely to be upheld.

160

Table 5.2

Logit Estimation of Integrated Model
State Supreme Court Automobile Search and Seizure Decision Making
Model: Courts with Democratic Majorities

 

 

1970-1990
Robust
Independent Parameter Standard Marginal Expected
Variable Estimate Error Effectsa Effect
Person -0.618* 0.210 -0.15 13 < 1
Incident to Arrest 0250* 0.127 0.06 B > 1
Inventory Search 0211* 0.059 0.05 [3 > 1
After Opperman 0.031 0.029 - (3 > 1
Container Search 0235* 0.054 -006 B > 1
After Ross 0101* 0.032 0.03 13 > 1
Trafﬁc Stop 0225* 0.073 0.06 (3 > 1
After Prouse -0002 0.002 - (3 < 1
State Constitution Less 0.001 0.001 -- 13 > 1
Protective
State Constitution More 0.002 0.001 - B < 1
Protective
Murder Case 0.009 0.005 -- 13 > 1
Lower Court Ruling 0980* 0.490 0.25 B > 1
Citizen Ideology 0473* 0.187 0.12 B > 1
Partisan Retention 0.024 0.019 -- 13 > 1
Nonpartisan Retention 0.015 0.009 -- 13 > 1
Merit Retention 0.002 0.002 -- 13 > 1
Cit. Ideol. X Partisan 0531* 0.207 0.13 B > 1
Retention
Cit. ldeol. X Nonpartisan 0321* 0.161 0.08 B > 1
Retention
Cit. Ideol. X Merit 0.001 0.001 -- B > 1
Retention
Violent Crime Rate 0098* 0.049 0.03 13 > 1
Southern Democratic 0.087 0.121 -- [5 > 1
Majority
Constant 1 .321 * 0.636

 

161

Table 5.2 (cont’d.)

 

 

N 197

% searches upheld 79%

% correctly predicted 89%

PRE 47.62%

x2 590.21
* Signiﬁcant at or s 0.05.

a Marginal effects are calculated on the basis of a baseline probability of 0.5.

% correctly predicted - % modal cateogry

: o *
PRE 100/0 100% - % modal cateogry

 

162

Table 5.3

Logit Estimation of Integrated Model
State Supreme Court Automobile Search and Seizure Decision Making
Model: Courts with Republican Majorities

 

 

1970-1990
Independent Robust
Variable Parameter Standard Marginal Expected
Estimate Error Effects“ Effect

Person -0523* 0.202 -013 (3 < 1

Incident to Arrest 0310* 0.148 0.08 B > 1

Inventory Search 0477* 0.205 0.12 (3 > 1
After Opperman 0.041 0.023 -- B > 1

Container Search 0.021 0.018 - 13 > 1
After Ross 0.018 0.016 -- 3 > 1

Traffic Stop 0359* 0.181 0.09 B > 1
After Prouse —0001 0.001 - p < 1

State Constitution Less 0.002 0.001 -- [3 > 1
Protective

State Constitution More 0.001 0.002 -- (3 < 1
Protective

Murder Case 0.018 0.010 -- (3 > 1

Lower Court Ruling 1.028* 0.355 0.26 13 > 1

Citizen Ideology 0201* 0.092 0.05 13 > 1

Partisan Retention 0.001 0.001 - B > 1

Nonpartisan Retention 0.007 0.006 - 13 > 1

Merit Retention 0.001 0.002 -- 13 > 1

Cit. ldeol. X Partisan 0.029 0.016 -- 13 > 1
Retention

Cit. Ideol. X Nonpartisan 0.030 0.032 - 13 > 1
Retention

Cit. ldeol. X Merit 0.009 0.108 -- 13 > 1
Retention

Violent Crime Rate 0.063 0.612 -- B > 1

Constant 1.91 1* 0.251

 

163

Table 5.3 (cont’d.)

 

 

N 129

% searches upheld 87%

% correctly predicted 93%

PRE 46.15%

x2 520.47
* Significant at a _<_ 0.05.

a Marginal effects are calculated on the basis of a baseline probability of 0.5.

% correctly predicted - % modal cateogry

PRE— 100/o 100% - % modal cateogry

164

Those incident to either an arrest or a traffic stop are each 6 percent more likely

to be upheld while inventory searches are 5 percent more likely to be upheld.

Considering the effects of U.S. Supreme Court rulings in the area of automobile
searches and seizures, I find only the Ross ruling to manifest an effect on the
likelihood of a challenged search or seizure being upheld. This differs from the
findings reported in Chapter Four in which a straight precedent model was
tested. In the precedent (or legal) model tested in Chapter Four, both Opperman
and Ross had an effect. In each case, the effect was to increase the likelihood of
a challenged search or seizure being upheld. In the integrated model presented
here, the effect of Opperman disappears when controlling for other relevant
factors, though the Ross decision still (very slightly) increases the likelihood of a

search being upheld.

Neither the parameter estimate for the dummy variable indicating states with less
protective state constitutions nor the dummy variable indicating states with more
protective state constitutions achieves statistical significance. Given the general
homogeneity among the states in their constitutions regarding search and
seizure provisions, perhaps this is not surprising. Whether or not the underlying
criminal charge relates to a murder also exerts no inﬂuence on the likelihood of a
search being upheld. But, if the lower court ruling upheld the challenged search
or seizure, there is a statistically signiﬁcant effect on the likelihood of it being

upheld in the state supreme court that is also substantively important. For a

165

challenged search or seizure otherwise having a 50-50 chance of being upheld, if
the lower court rules that the search or seizure is permissible, the likelihood of

the state supreme court finding likewise is increased by 25 percent.

Turning to a consideration of the effects of citizen ideology and method of judicial
retention, I find that ideology exerts both an independent effect and an interactive
effect through the method of retention. On the other hand, method of judicial
retention by itself has no independent effect. Speciﬁcally, as the citizenry
becomes more conservative, courts with Democratic majorities are more likely to
uphold a challenged search or seizure. Further, both partisan and nonpartisan
retention procedures magnify this effect, thus providing evidence that state
supreme courts with Democratic majorities are sensitive to electoral concerns.
However, merit retention procedures do not manifest an effect either by

themselves or in interaction with citizen ideology.

Of the two remaining variables in the estimation for courts with Democratic
majorities, the violent crime rate variable does achieve statistical signiﬁcance
while the dummy variable measuring courts with southern Democratic majorities

does not.

Overall the model performs quite well, correctly predicting 89 percent of the

observations with a proportional reduction in error of almost 48 percent.

166

Next consider Table 5.3, which reports the estimation results for courts with
Republican majorities. There are several notable differences between the results
for courts with Democratic majorities and for courts with Republican majorities.
First, four of the five case facts matter for the latter while all ﬁve case facts
mattered for the former. A search of an occupant in a car is less likely to be
upheld than a search of the vehicle itself, as was the case for courts with
Democratic majorities. Interestingly, an inventory search has virtually the same
effect in terms of magnitude as the search of a person on the likelihood of the
search being upheld, just in the opposite direction. Thus, a search with a prior
probability of being upheld of 0.5 becomes 13 percent less likely when the search
is of a person but 12 percent more likely when the search is an inventory search.
The substantive effects of a search being incident to an arrest and incident to a
traffic stop are also virtually the same. In the case of the former the likelihood
increases by 8 percent while in the case of the latter the likelihood increases by 9

percent given an initial probability of being upheld of 50 percent.

I hypothesized that the effect of case facts would be reinforced by the
preferences of the decision makers. Thus, my expectation was that those facts
that decrease the likelihood of a challenged search being upheld will be even
more likely to do so in state supreme courts with Democratic majorities, while
those facts that increase the likelihood of a challenged search being upheld will
be even more likely to do so in state supreme courts with Republican majorities.

Comparing the marginal effects of the statistically signiﬁcant case facts between

167

the model of Democratic-controlled courts and Republican-controlled courts
provides support for this hypothesis. So, for example, while the person case fact
decreases the likelihood that a challenged search or seizure will be upheld for
both types of courts, the person case fact depresses that likelihood more for
courts with Democratic majorities than for courts with Republican majorities.

And, while an inventory search is more likely to be upheld than a noninventory
search for both types of courts, that likelihood is even greater for courts with

Republican majorities than for courts with Democratic majorities.

Another notable difference in the results for Democratic- and Republican-
controlled courts is the inﬂuence of the U.S. Supreme Court. Unlike the case of
state supreme courts with Democratic majorities, when considering automobile
search and seizure decisions rendered by Republican-dominated courts, none of
the relevant U.S. Supreme Court decisions manifests an independent influence
on decision outcomes. Not even the Ross ruling which exerts at least some
influence in decision making on courts with Democratic majorities. The fact that
the Ross ruling remains inﬂuential, albeit only at the margins for courts with
Democratic majorities, implies that more liberally-inclined courts are more
responsive to the Supreme Court than are those with Republican majorities.
Perhaps this is a function of the fact that the latter are more likely to uphold a
challenged search or seizure to begin with than the former. There may simply be
too little room for additional factors to manifest an effect on the likelihood of a

challenged search or seizure being upheld.

168

There are only two other variables for which there is evidence in support of their
influence on automobile search and seizure decision making in Republican-
controlled state supreme courts: the ruling of the lower court and citizen
ideology. The effect of the lower court ruling is almost identical in the case of
courts with Republican majorities to the effect in courts with Democratic
majorities. In both cases, a challenged search or seizure that has a 0.5
probability of being upheld otherwise is increased by approximately 25 percent.
Interestingly, the effect of citizen ideology is more muted for Republican courts
than for Democratic courts: the marginal effect of citizen ideology in the former is
0.05 while in the latter it is 0.12. One of the most interesting ﬁndings of all is the
fact that the effect of citizen ideology is not enhanced by method of judicial
retention. Thus, while the effect of citizen ideology is both direct and enhanced
through method of judicial retention for Democratic courts, the effect is solely

direct and less pronounced for Republican courts.

The model overall performs respectably. Ninety-three percent of the searches

were correctly predicted, yielding a proportional reduction in error of just over 46

percent.

169

Conclusion

The objective of this chapter was to extend the precedent model of state
supreme court search and seizure decision making into an integrated model and
evaluate the robustness of legal stimuli as an explanation for decision making in
light of political, contextual, and institutional inﬂuences. The empirical results
provide some interesting insights into the faithfulness of state supreme courts to
the U.S. Supreme Court vis-a-vis the other influences with which the members of

state supreme courts contend.

First, it is interesting to note that the evidence of U.S. Supreme Court inﬂuence is
quite limited in nature. Of the relevant Supreme Court rulings, only Ross — and
only for courts with Democratic majorities — had any effect on the disposition of
challenged automobile search and seizure cases. While the empirical evidence
of Chapter Four suggested that the Supreme Court was inﬂuential in the
disposition of state automobile search and seizure cases, placing that inﬂuence
in the context of the full ambit of forces impinging on state supreme court

decision making undercuts that supposition.

Second, the preferences of the decision-making majority of state supreme courts
matter, both directly, in and of themselves, and indirectly, through the interpretive
lens they superimpose on the facts of the case. The perception of case facts is

not simply the direct apprehension of objective elements with the cases. Rather,

170

how case facts are perceived and interpreted is, at least to some extent, a

product of the preferences of the decision makers bring to the table.

Third, the direct expression of the decision-making majority’s preference is
subject to modiﬁcation depending upon the distribution of electoral preferences
and the institutional feature of judicial retention. This is only true, however, for
courts with Democratic majorities. Of the complete set of variables intended to
capture the role of context and institution in the judicial calculus, only the
ideology of the citizenry manifests an effect for courts with Republican majorities.
But, for their Democratic counterparts, not only are they more likely to uphold a
challenged search as the citizenry becomes more conservative, this effect is
magniﬁed when members of the state court bench are retained via partisan
election or nonpartisan election. In other words, the state context matters both
directly (via citizen ideology) and indirectly (via citizen ideology mediated by

method of retention).

Piecing the empirical results reported here into an even broader picture suggests
two especially interesting, and potentially important, things. First, there is at least
some evidence that state supreme courts with Democratic majorities evidence
more faithfulness to the policy prescriptions embedded in U.S. Supreme Court
decisions than do those with Republican majorities. The inﬂuence of Supreme
Court decisions appears to be limited in either case, but there is at least some

effect for the former and none for the latter. This raises some interesting

171

questions about the nature of judicial faithfulness. Given the increasing
conservative leanings of the U.S. Supreme Court in the area of search and
seizure, we might well have expected lesser compliance on the part of courts
with Democratic majorities. What I have found instead is that while Republican

courts pay little heed, Democratic courts are at least nominally attentive.

Second, courts with Democratic majorities are more strategic in their decision
making with reference to state electorates than are courts with Republican
majorities, at least in the area of automobile search and seizure jurisprudence.
While an increasingly conservative electorate does lead both types of courts to
increasingly uphold challenged searches and seizures, Democratic courts are
more attentive to the preferences of the electorate to begin with and that
attentiveness is enhanced by the method of judicial retention, a pattern not
repeated for Republican courts. This suggests there may be an ideological
component to the propensity of judges and courts to engage in strategic rather

than sincere behavior.

The model presented here draws on a line of integrated models that have been
growing increasingly more sophisticated and represents the contextualization of
judicial impact. In bringing to bear the analytic leverage the new institutionalism
offers, and drawing on the insights developed in the previous judicial impact
scholarship, I have developed a model that more accurately captures the

complexity of the relationship between inferior and superior courts. No one

172

seriously argues that judicial behavior is no more than the unmediated realization
of political preference. Nor does anyone insist that context or institutions alone
can provide an adequate explanation for judicial behavior. Rather, scholars
recognize that there are multiple inﬂuences that account for the ultimate product
of judicial decision making. But, while we know something in some contexts
about the relative inﬂuence of different types of stimuli (political, legal or
otherwise), especially with regard to judicial impact, our knowledge is overall
woefully inadequate. In accordance with the scientiﬁc spirit of knowledge
through incremental and cumulative advancement, the model of automobile

search and seizure decision making offered here represents a small extension of

our knowledge.

 

Chapter Five Notes

1 Of course, there is likely to be substantial congruence in policy preferences
between supreme court judges who ascend to the bench via legislative or
gubernatorial appointment and those policy elites involved in the appointment
process. This congruence does not mean that the former are influenced by the
latter in the sense of deciding cases differently than they otherwise would.

2 The most relevant language in the Arizona and Washington Constitutions
appears in Article II, § 8 and Article I, § 7, respectively, and is identical in each
case: “No person shall be disturbed in his private affairs, or his home invaded,
without authority of law.”

3 There are a number of different permutations in reality, with states using
different types of ballots (partisan or nonpartisan) for open primary and general
elections, for example.

4 Standard diagnostics were conducted. As was the case in the estimation of the
precedent model of Chapter Four, it is unlikely that each observation is
independent of the others since there is more than one observation per state. To
account for this, the model was estimated using robust standard errors. As
Appendix 5C reports, there is no indication of multicollinearity. Further, testing
for unit and temporal effects did not indicate that controls for either were
necessary. Using the procedure outlined in Chapter Three Appendix 3F, tests for
inﬂuential and outlying cases were conducted. The results indicated ten outliers,
however, the substantive results were not appreciably affected by removing them
from the sample. The ﬁnal results were estimated with the inclusion of those
observations in the absence of any theoretical justiﬁcation for doing so.

174

APPENDIX 5A
Constitutional Provisions: Search and Seizure
United States Constitution: 4"” Amendment

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.

Alabama Constitution: Article I, § 5

That the people shall be secure in their persons, houses, papers, and
possessions from unreasonable seizure or searches, and that no warrants shall
issue to search any place or to seize any person or thing without probable cause,
supported by oath or afﬁrmation.

Alaska Constitution: Article I, § 14

The right of the people to be secure in their persons, houses and other property,
papers, and effects, against unreasonable searches and seizures, shall not be
violated. No warrants shall issue, but upon probable cause, supported by oath or
afﬁrmation, and particularly describing the place to be searched, and the persons
or things to be seized.

Arizona Constitution: Article II, § 8

Section 8. No person shall be disturbed in his private affairs, or his home
invaded, without authority of law.

Alabama Constitution: Article II, § 15

The right of the people of this State to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures shall not be violated;
and no warrant shall issue except upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and the person
or thing to be seized.

175

California Constitution: Article I, § 13

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable seizures and searches may not be violated; and a warrant
may not issue except on probable cause, supported by oath or affirmation,
particularly describing the place to be searched and the persons and things to be
seized.

Colorado Constitution: Article II, Section 7

The people shall be secure in their persons, papers, homes and effects, from
unreasonable searches and seizures; and no warrant to search any place or
seize any person or things shall issue without describing the place to be
searched, or the person or thing to be seized, as near as may be, nor without
probable cause, supported by oath or afﬁrmation reduced to writing.

Connecticut Constitution: Article I, Section 7

The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches or seizures; and no warrant to search any place, or
to seize any person or things, shall issue without describing them as nearly as
may be, nor without probable cause supported by oath or afﬁrmation.

Delaware Constitution: Article I, § 6

The people shall be secure in their persons, houses, papers and possessions,
from unreasonable searches and seizures; and no warrant to search any place,
or to seize any person or thing, shall issue without describing them as particularly
as may be; nor then, unless there be probable cause supported by oath or
affirmation.

Florida Constitution: Article I, § 12

The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures, and against the unreasonable
interception of private communications by any means, shall not be violated. No
warrant shall be issued except upon probable cause, supported by afﬁdavit,
particularly describing the place or places to be searched, the person or persons,
thing or things to be seized, the communication to be intercepted, and the nature
of evidence to be obtained. This right shall be construed in conformity with the
4th Amendment to the United States Constitution, as interpreted by the United
States Supreme Court. Articles or information obtained in violation of this right
shall not be admissible in evidence if such articles or information would be
inadmissible under decisions of the United States Supreme Court construing the
4th Amendment to the United States Constitution.

176

Georgia Constitution: Article I, § I, Paragraph XIII

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated; and no
warrant shall issue except upon probable cause supported by oath or affirmation
particularly describing the place or places to be searched and the persons or
things to be seized.

l-Iawaii Constitution: Article I, § 7

The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches, seizures and invasions of privacy shall not be
violated; and no warrants shall issue but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched and the
persons or things to be seized or the communications sought to be intercepted.

Idaho Constitution: Article I, § 17

The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated; and no
warrant shall issue without probable cause shown by afﬁdavit, particularly
describing the place to be searched and the person or thing to be seized.

Illinois Constitution: Article I, § 6

The people shall have the right to be secure in their persons, houses, papers and
other possessions against unreasonable searches, seizures, invasions of privacy
or interceptions of communications by eavesdropping devices or other means.
No warrant shall issue without probable cause, supported by afﬁdavit particularly
describing the place to be searched and the persons or things to be seized.

Indiana Constitution: Article I, § 11

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable search, or seizure, shall not be violated; and no
warrant shall issue, but upon probable cause, supported by oath or afﬁrmation,
and particularly describing the place to be searched, and the person or thing to
be seized.

Iowa Constitution: Article I, § 8

The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable seizures and searches shall not be violated; and no
warrant shall issue but on probable cause, supported by oath or afﬁrmation,
particularly describing the place to be searched, and the persons and things to
be seized.

177

Kansas Constitution: Preamble, § 15

The right of the people to be secure in their persons and property against
unreasonable searches and seizures, shall be inviolate; and no warrant shall
issue but on probable cause, supported by oath or affirmation, particularly
describing the place to be searched and the persons or property to be seized.

Kentucky Constitution: Bill of Rights, § 10

The people shall be secure in their persons, houses, papers and possessions,
from unreasonable search and seizure; and no warrant shall issue to search any
place, or seize any person or thing, without describing them as nearly as may be,
nor without probable cause supported by oath or afﬁrmation.

Louisiana Constitution: Article I, § 5

Every person shall be secure in his person, property, communications, houses,
papers, and effects against unreasonable searches, seizures, or invasions of
privacy. No warrant shall issue without probable cause supported by oath or
affirmation, and particularly describing the place to be searched, the persons or
things to be seized, and the lawful purpose or reason for the search. Any person
adversely affected by a search or seizure conducted in violation of this Section
shall have standing to raise its illegality in the appropriate court.

Maine Constitution: Article I, § 5

The people shall be secure in their persons, houses, papers and possessions
from all unreasonable searches and seizures; and no warrant to search

any place, or seize any person or thing, shall issue without a special designation
of the place to be searched, and the person or thing to be seized, nor without
probable cause-~supported by oath or afﬁrmation.

Maryland Constitution: Declaration of Rights, Article 26

That all warrants, without oath or afﬁrmation, to search suspected places, or to
seize any person or property, are grievous and oppressive; and all general
warrants to search suspected places, or to apprehend suspected persons,
without naming or describing the place, or the person in special, are illegal, and
ought not to be granted.

178

Massachusetts Constitution: Declaration of Rights, Part I, Article XIV

Every subject has a right to be secure from all unreasonable searches, and
seizures, of his person, his houses, his papers, and all his possessions. All
warrants, therefore, are contrary to this right, if the cause or foundation of them
be not previously supported by oath or affirmation; and if the order in the warrant
to a civil officer, to make search in suspected places, or to arrest one or more
suspected persons, or to seize their property, be not accompanied with a special
designation of the persons or objects of search, arrest, or seizure; and no
warrant ought to be issued but in cases, and with the formalities prescribed by
the laws.

Michigan Constitution: Article I, § 11

The person, houses, papers and possessions of every person shall be secure
from unreasonable searches and seizures. No warrant to search any place or to
seize any person or things shall issue without describing them, nor without
probable cause, supported by oath or afﬁrmation. The provisions of this

section shall not be construed to bar from evidence in any criminal proceeding
any narcotic drug, firearm, bomb, explosive or any other dangerous weapon,
seized by a peace ofﬁcer outside the curtilage of any dwelling house in this state.

Minnesota Constitution: Article I, § 10

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported by oath or afﬁrmation,
and particularly describing the place to be searched and the person or things to
be seized.

Mississippi Constitution: Article III, § 23

The people shall be secure in their persons, houses, and possessions, from
unreasonable seizure or search; and no warrant shall be issued without probable
cause, supported by oath or afﬁrmation, specially designating the place to be
searched and the person or thing to be seized.

Missouri Constitution: Article I, § 15

That the people shall be secure in their persons, papers, homes and effects, from
unreasonable searches and seizures; and no warrant to search any place, or
seize any person or thing, shall issue without describing the place to be
searched, or the person or thing to be seized, as nearly as may be; nor without
probable cause, supported by written oath or affirmation.

179

Montana Constitution: Article II, § 11

The people shall be secure in their persons, papers, homes and effects from
unreasonable searches and seizures. No warrant to search any place, or seize
any person or thing shall issue without describing the place to be searched or the
person or thing to be seized, or without probable cause, supported by oath or
afﬁrmation reduced to writing.

Nebraska Constitution: Article I, § 7

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported by oath or afﬁrmation,
and particularly describing the place to be searched, and the person or thing to
be seized.

Nevada Constitution: Article I, § 18

The right of the people to be secure in their persons, houses, papers and effects
against unreasonable seizures and searches shall not be violated; and no
warrant shall issue but on probable cause, supported by Oath or Afﬁrmation,
particularly describing the place or places to be searched, and the person or
persons, and thing or things to be seized.

New Hampshire Constitution: Part 1, Article 19

Every subject hath a right to be secure from all unreasonable searches and
seizures of his person, his houses, his papers, and all his possessions.
Therefore, all warrants to search suspected places, or arrest a person for
examination or trial in prosecutions for criminal matters, are contrary to this right,
if the cause or foundation of them be not previously supported by oath or
afﬁrmation; and if the order, in a warrant to a civil ofﬁcer, to make search in
suspected places, or to arrest one or more suspected persons or to seize their
property, be not accompanied with a special designation of the persons or
objects of search, arrest, or seizure; and no warrant ought to be issued; but in
cases, and with the formalities, prescribed by law.

New Jersey Constitution: Chapter 1, § 91

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated; and
no warrant shall issue except upon probable cause, supported by oath or
afﬁrmation, and particularly describing the place to be searched and the papers
and things to be seized.

180

New Mexico Constitution: Article II, § 10

The people shall be secure in their persons, papers, homes and effects, from
unreasonable searches and seizures, and no warrant to search any place, or
seize any person or thing, shall issue without describing the place to be
searched, or the persons or things to be seized, nor without a written showing of
probable cause, supported by oath or affirmation.

New York Constitution: Article I, § 12

The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or afﬁrmation,
and particularly describing the place to be searched, and the persons or things to
be seized.

The right of the people to be secure against unreasonable interception of
telephone and telegraph communications shall not be violated, and ex parte
orders or warrants shall issue only upon oath or affirmation that there is
reasonable ground to believe that evidence of crime may be thus obtained, and
identifying the particular means of communication, and particularly describing the
person or persons whose communications are to be intercepted and the purpose
thereof.

North Carolina Constitution: Article I, § 20

General warrants, whereby any ofﬁcer or other person may be commanded to
search suspected places without evidence of the act committed, or to seize any
person or persons not named, whose offense is not particularly described and
supported by evidence, are dangerous to liberty and shall not be granted.

North Dakota Constitution, Article 1, § 8

The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported by oath or afﬁrmation,
particularly describing the place to be searched and the persons and things to be
seized.

Ohio Constitution: Article I, § 14

The right of the people to be secure in their persons, houses, papers, and
possessions, against unreasonable searches and seizures shall not be violated;
and no warrant shall issue, but upon probable cause, supported by oath or
affirmation, particularly describing the place to be searched and the person and
things to be seized.

181

Oklahoma Constitution: Article II, § 30

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches or seizures shall not be violated; and no warrant

shall issue but upon probable cause supported by oath or afﬁrmation, describing
as particularly as may be the place to be searched and the person or thing to be

seized.

Oregon Constitution: Article I, § 9

No law shall violate the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search, or seizure; and no warrant
shall issue but upon probable cause, supported by oath, or affirmation, and
particularly describing the place to be searched, and the person or thing to be
seized.

Pennsylvania Constitution: Article I, § 8

The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches and seizures, and no warrant to search any place or
to seize any person or things shall issue without describing them as nearly as
may be, nor without probable cause, supported by oath or afﬁrmation subscribed
to by the affidavit.

Rhode Island Constitution: Article I, § 6

The right of the pe0ple to be secure in their persons, papers and possessions,
against unreasonable searches and seizures, shall not be violated; and no
warrant shall issue, but on complaint in writing, upon probable cause, supported
by oath or afﬁrmation, and describing as nearly as may be, the place to be
searched and the persons or things to be seized.

South Carolina Constitution: Article I, § 10

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures and unreasonable invasions of
privacy shall not be violated, and no warrants shall issue but upon probable
cause, supported by oath or afﬁrmation, and particularly describing the place to
be searched, the person or thing to be seized, and the information to be
obtained.

182

South Dakota Constitution: Article VI, § 11

The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures shall not be violated, and no
warrant shall issue but upon probable cause supported by afﬁdavit, particularly
describing the place to be searched and the person or thing to be seized.

Tennessee Constitution: Article I, § 7

That the people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures; and that general
warrants, whereby an ofﬁcer may be commanded to search suspected places,
without evidence of the fact committed, or to seize any person or persons not
named, whose offences are not particularly described and supported by
evidence, are dangerous to liberty and ought not to be granted.

Texas Constitution: Article I, § 9

The people shall be secure in their persons, houses, papers and possessions,
from all unreasonable seizures or searches, and no warrant to search any
place, or to seize any person or thing, shall issue without describing them as
near as may be, nor without probable cause, supported by oath or afﬁrmation.

Utah Constitution: Article I, § 14

The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause supported by oath or afﬁrmation,
particularly describing the place to be searched, and the person or thing to be
seized.

Vermont Constitution: Chapter I, Article XI

That the people have a right to hold themselves, their houses, papers, and
possessions, free from search or seizure; and therefore warrants, without oath or
afﬁrmation first made, affording sufficient foundation for them, and whereby by
any ofﬁcer or messenger may be commanded or required to search suspected
places, or to seize any person or persons, his, her or their property, not
particularly described, are contrary to that right, and ought not to be granted.

183

 

 

 

Virginia Constitution: Article I, § 10

That general warrants, whereby an officer or messenger may be commanded to
search suspected places without evidence of a fact committed, or to seize any
person or persons not named, or whose offense is not particularly described and
supported by evidence, are grievous and oppressive, and ought not to be
granted.

Washington Constitution: Article I, § 7

No person shall be disturbed in his private affairs, or his home invaded, without
authority of law.

West Virginia Constitution: Article III, § 6

The rights of the citizens to be secure in their houses, persons, papers and
effects, against unreasonable searches and seizures, shall not be violated. No
warrant shall issue except upon probable cause, supported by oath or
afﬁrmation, particularly describing the place to be searched, or the person or
thing to be seized.

Wisconsin Constitution: Article I, § 11

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported by oath or afﬁrmation,
and particularly describing the place to be searched and the persons or things to
be seized.

Wyoming Constitution: Article I, § 4

The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no
warrant shall issue but upon probable cause, supported by afﬁdavit, particularly
describing the place to be searched or the person or thing to be seized.

184

 

 

APPENDIX SB
Table 5A.1

Integrated Automobile Search and Seizure Descriptive Statistics

 

 

variable minimum maximum mean
Person 0 1 0.542
Arrest 0 1 0.311
Inventory 0 1 0.21 3
Container 0 1 0.358
Container post-Ross 0 1 0.172
Trafﬁc 0 1 0.427
Opperman 0 1 0.340
Prouse 0 1 0.574
Constitution More Prot. 0 1 0.049
Constitution Less Prot. 0 1 0.071
Murder 0 1 0.215
Lower Court 0 1 0.854
Citizen Ideology 0.189 0.784 0.524
Partisan Election 0 1 0.321
Nonpartisan Election 0 1 0.225
Merit Selection 0 1 0.121
Violent Crime Rate 6.89 21.51 12.86

 

185

APPENDIX 5C
Multicollinearity

The correlation matrix below indicates that there is no multicollinearity, as there is
no correlation that exceeds 1 0.69.

 

PERS ARRE INVE CONB CONA TRAF OPPE
PERS 1.000
ARRE 0.691 1.000
INVE 0.124 0.211 1.000
CONB 0.000 0.078 0.187 1.000
CONA 0.000 0.069 0.192 0.211 1.000
TRAF 0.577 0.621 -0.215 0.375 0.455 1.000
OPPE 0.067 0.421 0.229 -0.461 0.479 0.271 1.000
PROU 0.087 0.537 0.484 0.273 -0.265 0.291 0.112
MURD 0.295 0.274 0.118 0.176 0.218 0.011 0.219
LOWE -0.689 0.365 0.215 -0.658 0.514 0.045 -0.078
IDEO -0.109 0.256 0.319 0.085 -0.295 0.258 0.410
PART 0.318 0.317 0.322 0.071 0.417 0.241 0.181
NONP 0.057 0.179 0.228 0.274 0.352 0.319 0.421
MERI 0.069 0.288 0.220 0.0971 0.671 0.091 0.251
PROU MURD LOWE IDEO PART NONP MERI
PROU 1.000
MURD 0.174 1.000
LOWE 0.489 0.472 1.000
IDEO 0.095 0.275 0.577 1.000
PART 0.086 0.142 0.261 0.595 1.000
NONP 0.154 0.253 0.058 0.563 0.000 1.000
MERI 0.562 0.327 0.277 0.112 0.000 0.000 1.000

 

186

CHAPTER SIX

CONCLUSION: JUDICIAL IMPACT IN CONTEXT

Political scientists devote an enormous amount of their time and energy to
unraveling the complexities of political behavior. We study how presidents
conduct foreign policy, how congressmen vote on legislation, and how citizens
decide which political candidate to vote for. When it comes to studying judicial
behavior, we dedicate the majority of our scholarly attention to scrutinizing and
theorizing about why judges decide cases the way they do. To be sure, we
concern ourselves with other kinds of judicial behavior as well (e.g., certiorari
decision making, opinion assignment) but at the heart of the study of judicial
politics lays our preoccupation with ultimate judicial choice. Judicial impact is
apropos of this preoccupation since it explores the relationship between the

effects of judicial choice by a superior court on the judicial choice of its inferiors.

My objective has been to examine the speciﬁc relationship between the United
States Supreme Court and state courts of last resort. The relationship is an
unusual one in that the U.S. Supreme Court is the superior of state supreme
courts only under carefully prescribed conditions. If what is at issue is a question
of the appropriate interpretation of a state statute or the extent of protections
afforded by the state constitution, it is the state supreme court, not the U.S.
Supreme Court, which has the authority to decide. Within their own rather

expansive sphere, state supreme courts are answerable to no other judicial actor

187

but themselves. The Supreme Court becomes the superior of state courts of last

resort only when federal statutory or federal constitutional claims are made.

When such claims are raised, if a state supreme court should choose not to heed
the U.S. Supreme Court’s jurisprudence regarding the claims made, other than
reviewing and overturning that lower court decision, there is little the nation’s
highest tribunal can do. There is no question that judges do not like to see their
decisions overturned. There is also little question that ﬂagrant disobedience is
likely to catch the attention of the Supreme Court and enhance the probability
that a case will be reviewed. Yet, the likelihood of review remains minimal given

the small number of cases accepted for hearing by the Supreme Court.

Given the imperfect nature of the supervisory control of the U.S. Supreme Court
over state supreme courts — imperfect both in the sense of its extent and in terms
of the available mechanisms of control - there seems little reason to expect the
latter will follow the policy prescriptions embedded in the decisions of the former.
There is a generally accepted legal principle, however, of obedience to the
dictates of superior courts. The socialization process most judges undergo and
the legal culture within which they perform their functions inculcates this norm.
This leaves us with muddled expectations regarding the extent to which state

supreme courts are faithful to the U.S. Supreme Court.

188

I began this dissertation by offering an integrated, institutional theory of judicial
impact. I have argued that neither a purely attitudinal model nor a purely legal
model adequately captures the dynamics of state supreme court decision
making. State supreme court decision making is nested not only within the
context of the vertical relationship with the U.S. Supreme Court, but also within
the political context of each respective state. The process by which state courts
of last resort resolve the cases at hand is a function of the complex interactions
of judicial preferences, legal stimuli and the political environment, as mediated

through institutional design.

To gain purchase on the thorny question of state supreme court faithfulness, I
began with an examination of the degree of correspondence in the use of case
facts for deciding search and seizure cases in the U.S. Supreme Court and state
courts of last resort. Using a sample of state supreme court search and seizure
decisions, I discovered considerable agreement in the importance of case
characteristics for disposing of search and seizure cases in the Supreme Court
and state courts of last resort. I also found that the increasing likelihood of the
U.S. Supreme Court upholding challenged searches and seizures inﬂuenced
state supreme court decision making. In other words, I found state supreme
courts to be both congruent with and responsive to U.S. Supreme Court search
and seizure decision making. Coupling my results with those reported by
Songer, Segal and Cameron for the U.S. Courts of Appeals, l was most

interested to find a greater degree of integration across all three levels of court

189

than might be expected given the relatively autonomous position of the state

courts of last resort in the American judicial system.

To more directly and precisely evaluate the faithfulness of state supreme courts
to the U.S. Supreme Court, I next developed a precedential, or legal, model of
automobile search and seizure decision making that incorporated both case facts
and relevant Supreme Court rulings. Narrowing the focus from search and
seizure generally to automobile search and seizure yielded a more compact fact
pattern amenable to the inclusion of pertinent interactions with Supreme Court
rulings on point. The empirical analysis suggested that not only case facts but
also Supreme Court precedents are important for state supreme court decision
making. In particular, state supreme courts were even more likely to uphold an
inventory search after the Supreme Court ruling in the 1976 case of South
Dakota v. Opperman, which granted law enforcement greater discretion in
conducting such searches. And, the Court’s ruling in United States v. Ross,
making every part of a vehicle subject to search without a warrant if there is
probable cause, did increase the likelihood of a state supreme court upholding a

challenged container search.

Having first investigated the general nature of state supreme court faithfulness to
the U.S. Supreme Court and then subjected that behavior to an empirical test of
the legal model, the next step was to extend the legal model into an integrated

model by taking into account relevant political, institutional, and contextual

190

factors. The goal was to consider the relationship between the U.S. Supreme
Court and state courts of last resort while simultaneously considering the inter-
relationship of state courts of last resort and their state contexts. Using partisan
affiliation as a surrogate for court preferences, I extended the legal model by
including the preferences of the state court majority as well as the political values
of state electorates as conditioned by method of judicial retention. The
integrated model performed remarkably well, providing direct evidence that
decision making by states courts of last resort when they are called upon to apply
the policy prescriptions embedded in U.S. Supreme Court decisions is more a
function of the context within which such decision making occurs and the
preference of the decision making majority than of direct Supreme Court
influence. In short, integration of the constituent elements of the federated
American judicial system is conditioned in meaningful ways by local contexts and

institutional designs.

This finding should be of particular interest to those scholars who have chosen to
focus their attention on the United States Supreme Court and its decision
making. If the inﬂuence of the Supreme Court was direct and unequivocal on all
of the courts over which it exercises authority, we could justify a singular focus on
the nation’s highest tribunal on the grounds that its decision making is
determinative of judicial decision making in all lower courts. As I have
demonstrated here, however, that assumption is ill-founded. Rather, to

understand the import of Supreme Court decision making requires going beyond

191

I I

that court and delving into the decision making process of other, subordinate,

couns.

This dissertation also makes a useful contribution in that it speaks directly to two
on-going controversies in the judicial politics subfield. The ﬁrst debate, between
proponents of the legal and attitudinal models of judicial decision making,
continues on, despite the enormous evidence marshaled in favor of the
attitudinalists. Attitudinalists insist on the primacy of preferences while
proponents of the legal model insist on the primacy of legal stimuli for the
disposition of cases. The evidence offered in this dissertation documents the
importance of individual policy preferences in the disposition of cases while
shedding light on the conditions under which their direct expression will be

modified.

The second debate is over the extent to which judges act sincerely versus
strategically. The literature of strategic decision making may have its roots in
Walter Murphy’s Elements of Judicial Style, his 1964 treatment of strategies
available to savvy Supreme Court justices, but it is only in the recent past that
students of judicial behavior have paid serious attention to unraveling the
complexities of strategic behavior as it relates to the courts (e.g., Epstein and
Knight 1998). The evidence presented here supports the idea that state
supreme are strategic when they are engaged in decision making that requires

acting upon cues from the U.S. Supreme Court. While there is a burgeoning

192

body of strategic decision making literature at the state supreme court level, this
literature is focused almost solely on the inducements for strategic behavior that
emanate from the state context. Largely absent from this literature is a
consideration of how strategic behavior may be induced by judicial superiors, a

notion herein investigated.

The findings reported here are of interest not only for what they tell us about
judicial compliance decision making but also for their ﬁt with ﬁndings about the
role of institutions in strategic calculations in other ﬁelds. Scholars have
proﬁtably exploited the analytic advantages of a rational choice perspective and
institutional framework to, for example, unravel the complexities of constitutional
design as well as understand the legislative process, presidential behavior and
the operation of bureaucracy (Weingast 1996). The literature is quite extensive
and establishes the importance of institutional design for the behavior of those
laboring within those institutions. While this dissertation is not the first to apply
this perspective to judicial behavior, it is unique in applying it in the context of
judicial impact and compliance and the ﬁndings demonstrate the utility of doing
so. The bottom line is that institutions matter for understanding judicial impact as

they do for other species of political behavior.

As students of the judiciary have broadened their intellectual horizons by

focusing on an increasing array of courts, institutions and context have been

given an increasingly prominent place among the pantheon of inﬂuential forces in

193

our theorizing on judicial decision making. Scholars have come to recognize that
there are few if any courts that operate as insular institutions, impervious to their
external political environment. Courts are not the apolitical entities that populate
our legal myths. Rather, they are policy-making institutions subject to extra-legal
influences. With this recognition has come the construction of more

sophisticated and integrated models of judicial choice.

It is curious that early studies of compliance by lower state and federal courts,
sparked by the obvious noncompliance with the controversial race relations
decisions of the Supreme Court, explicitly acknowledged the effect of context, yet
subsequent generations of judicial impact scholarship largely has not. The
emphasis has been on the vertical relationship between higher and lower courts
to the exclusion of the horizontal relationships embedded in the environments
lower courts operate in. As the results reported here demonstrate, however, a

complete picture of judicial impact requires paying attention to both.

The ultimate goal of this research was to place judicial impact into its larger
political and institutional context. The inﬂuences on state supreme court decision
making are many and varied. The exclusion of extra-legal factors in the study of
inferior-superior court relations is a serious omission that ignores the reality of
courts as permeable institutions. By developing an integrated model of
automobile search and seizure decision making, I begin to redress, in a small

way, this omission in the judicial impact literature, extending our understanding of

194

judicial compliance by clarifying the strategic interaction of state supreme courts

with other political actors.

195

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196

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