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DEFENDERS OF CIVIL LIBERTIES OR CHAMPIONS OF NATIONAL SECURITY?
THE FEDERAL COURTS AND U.S. FOREIGN POLICY

By

Kirk Andrew Randazzo

A DISSERTATION

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

DOCTOR OF PHILOSOPHY

Department of Political Science

2003

ABSTRACT

DEFENDERS OF CIVIL LIBERTIES OR CHAMPIONS OF NATIONAL SECURITY?
THE FEDERAL COURTS AND U.S. FOREIGN POLICY

By

Kirk Andrew Randazzo

The terrorist attacks of September 11, 2001, and subsequent actions by the Bush
administration, have reminded us that the federal courts often are required to resolve
questions of individual rights in lieu of foreign policy or national security concerns.
Unfortunately, the majority of US. foreign policy studies focus on interactions between
the executive and legislative branches of government during the conduct of foreign
affairs. Consequently, in an effort to concentrate on the President, Congress, or agencies
such as the CIA or Department of State, these examinations neglect the roles played by
the judiciary. By focusing on judicial involvement in the development of US. foreign
policy the chapters of this dissertation therefore contribute to several literatures. First, the
analyses augment studies of US. foreign policy by focusing on a historically neglected
branch. Second, the examinations contribute to the literature on judicial politics by
comparing structural differences among the three levels of the federal court system.
Throughout the entire project, two main themes emerge: what roles have the federal
courts assmned in resolving foreign policy disputes, and does the structure of the judicial
system exert a substantial inﬂuence on judicial decision making in foreign policy cases?
Using a unique dataset of cases from 1946-2000, I discover several conclusions. First, the
answer about whether judges are defenders of civil liberties or champions of national

security is resolved in favor of the latter. Based on separate empirical models one can

reasonably conclude that federal judges are champions of national security; though liberal
judges are more likely to support civil liberties than conservatives. Second, the empirical
results demonstrate that the hierarchical structure of the federal judiciary exerts a
signiﬁcant constraint upon the Courts of Appeals, but not upon the District Courts.
Finally, a qualitative analysis of post-September 11th cases indicates these results are
consistent in the contemporary judicial system, although more analyses are needed to

conﬁrm this conclusion.

ACKNOWLEDGEMENTS

This dissertation would not be possible without the generous support and
assistance from several individuals. First, to my advisor Reginald S. Sheehan, thank you
for the encouragement and advice on this project and all the others completed during my
tenure at Michigan State University. Additionally, thank you for the opportunity to work
in the Program for Law and Judicial Politics. Second, to Harold J. Spaeth who served as
an additional advisor, thank you for providing valuable insights into my research and
socialization into the profession. To the remaining members of my dissertation
committee, Burt Monroe, Donald R. Songer, and Christopher E. Smith, my thanks for
your time and comments regarding this project.

Let me also express my gratitude to my family, without whom this project would
not be possible. I would like to especially thank my mother, Donna, and mother-in-law,
Ethel, for providing “in-house” childcare while I took time to ﬁnish writing. I would also
like to thank my six-month old son, Samuel, for always greeting me with a smile when I
returned home late at night. Finally, my deepest thanks to my wife, Carol. I could never
have ﬁnished the dissertation or the doctoral program without your encouragement,
support and love.

Though these individuals all contributed to the completion of this dissertation, any

errors or omissions are solely my responsibility.

iv

TABLE OF CONTENTS

List of Figures and Tables ................................................................................................ vii
Introduction _________________________________________________________________________________________________________________________ 1
Federal Courts and US. Foreign Policy ________________________________________________________________ 5
Organization of Dissertation __________________________________________________________________________________ 9
Chapter One: Theoretical Foundations _____________________________________________________________________________ 10
Deﬁnitions of US. Foreign Policy ....................................................................... 10
International Relations/Foreign Policy Theories ................................................. 13
Constitutional/Legal Theories ............................................................................... 16
Theories of Judicial Politics .................................................................................. 19
Conclusions ____________________________________________________________________________________________________________ 2 5
Chapter Two: Individual Examinations ........................................................................... 27
Anecdotal Evidence .............................................................................................. 2 8
Theoretical Expectations ______________________________________________________________________________________ 33
Research Design and Methods ............................................................................. 3 8
Empirical Results __________________________________________________________________________________________________ 4 3
Conclusions ___________________________________________________________________________________________________________ 54
Chapter Three: The Hierarchy of Justice and the Courts of Appeals ____________________________ 57
Historical Development of the Federal Judiciary ............................................... 58
Theories of Judicial Compliance and Structural Hierarchies _____________________________ 6 1
Formal Model of Appeals Court Decision Making ............................................ 6 5
Testing the Formal Model ____________________________________________________________________________________ 75
Research Design and Methods _____________________________________________________________________________ 84
Empirical Results __________________________________________________________________________________________________ 88
Conclusions ___________________________________________________________________________________________________________ 9 4
Chapter Four: The Hierarchy of Justice and the District Courts ___________________________________ 96
Historical Development of the District Courts ................................................... 9 7
Policy Making in a Judicial Hierarchy ................................................................ 9 9
Formal Model of District Court Decision Making ........................................... 103
Research Design and Methods ........................................................................... 116
Empirical Results ................................................................................................ 119
Conclusions 124

Chapter Five: Defenders of Civil Liberties or Champions of National Security? ,,,,,, 126

Analytical Contributions ____________________________________________________________________________________ 127
Civil Liberties Protection in a Post-September 11th Environment ................... 131
Appendix One: Coding Rules ________________________________________________________________________________________ 136

Appendix Two: Litigant Codes ______________________________________________________________________________________ 142
Appendix Three: Issue Codes ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 149

References 151

vi

LIST OF FIGURES AND TABLES

Figure 3-1: Decision Sequence with Complete Information .........................................
Figure 3-2: Decision Sequence under Strategic Choice Model _____________________________________
Figure 4-1: Decision Sequence with Complete Information ........................................ 1
Figure 4-2: Decision Sequence under Strategic Choice Model ___________________________________ 1

Table 2-1: District Court Descriptive Statistics ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Table 2-2: Courts of Appeals Descriptive Statistics ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Table 2-3: Supreme Court Descriptive Statistics ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Table 2-4: Probit Analysis ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Table 3-1: Strategic Analysis of Appeals Courts Decisions ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Table 4-1: Strategic Analysis of District Court ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 1

 

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20

INTRODUCTION

In 1982, Honduran national Juan Ramon Matta-Ballesteros joined a Mexican
marijuana and cocaine trafﬁcking enterprise, and eventually began grossing over $5
million a week from successful ventures in the United States. Within two years the US.
Drug Enforcement Administration (DEA) made several signiﬁcant arrests, resulting in
substantial losses of revenue for the Mexican enterprise. As a response to these arrests,
the Mexican cartel kidnapped, tortured and killed DEA Special Agent Enrique Camarena
in 1985. Physical evidence at the crime scene connected Matta-Ballesteros to this killing;
however, the DEA twice failed to extradite him to the United States for trial. Near dawn,
on April 5, 1988, US. Marshals — aided by Honduran Special Troops -- forcibly abducted
Matta-Ballesteros from his home and within twenty-four hours incarcerated him in a
federal penitentiary located in Marion, Illinois. During his trial in federal district court, ‘
Matta-Ballesteros contended that while being transported to the United States, the
marshals repeatedly beat him and applied a stun gun to various parts of his body
including his feet and genitals. The district court dismissed these contentions and Matta-
Ballesteros was convicted and sentenced for the murder of Agent Camarena.

On appeal to the Ninth Circuit Court of Appeals, Matta-Ballesteros argued the
district court improperly exercised its jurisdiction. This argument was premised on the
extradition treaty between Honduras and the United States (under which the DEA could
not secure his extradition), and the shocking nature of his abduction and mistreatment by
US. Marshals. Speaking on behalf of a unanimous panel for the Ninth Circuit, Judge

Cecil Poole concluded, “where the terms of an extradition treaty do not speciﬁcally

prohibit the forcible abduction foreign nationals, the treaty does not divest federal courts
of jurisdiction over the foreign national.”1 Additionally, Judge Poole stated that while the
circumstances surrounding Matta-Ballesteros’ abduction and treatment were disturbing,
the actions of the US. Marshals “violated no recognized constitutional or statutory
rights” and therefore the appellate panel had no basis upon which to overturn the decision
of the district court.2

It is perhaps difﬁcult to determine if Matta-Ballesteros was brought to justice for
the murder of Agent Camarena, or if he was the victim of an overzealous US.
government. However, it is important to realize that the federal courts often determine the
extent to which the government may permissibly intrude upon individual civil liberties.
The terrorist attacks of September 11, 2001, and subsequent actions by the Bush
administration, have reminded us that the federal courts often are required to resolve
questions of individual rights in lieu of foreign policy or national security concerns.

Unfortunately, the majority of US. foreign policy studies focus on interactions
between the executive and legislative branches of government during the conduct of
foreign affairs. They examine the politics of a decision-making process, designed to
confront the numerous challenges encountered from the participation of a government in
an interdependent, international system. Thus, scholars focus primarily on those actors
within the United States who proactively determine foreign relations policy.

Consequently, in an effort to concentrate on the President, Congress, or agencies
such as the CIA or Department of State, these examinations neglect the roles played by

the judiciary. While the political branches of government most directly determine policy

 

; United States v. Matta-Ballesteros 71 F.3d 754 (1995).
Ibid.

outcomes, the contributions of the judiciary are no less signiﬁcant. Many foreign policy
questions involve constitutional interpretations regarding the authority vested in the
executive and legislative branches. Since the courts possess the authority to interpret the
Constitution, judicial decisions often deﬁne the parameters and boundaries within which
the political branches must operate. Despite this substantial impact on foreign policy
decision-making, little scholarship exists on judicial inﬂuences in the conduct of foreign
affairs.

Three signiﬁcant limitations have hindered our understanding of how the
judiciary operates in the foreign relations scheme. First, within the small body of
literature examining courts and foreign policy, a majority of these studies utilize
qualitative techniques to assess historical relationships between the three branches of the
federal government. These studies examine whether the Supreme Court defers to either
the President or Congress in the formulation and conduct of US. foreign policy. While
these doctrinal analyses provide detailed descriptions of speciﬁc case histories, they do
not offer theoretical contributions to judicial behavior. Some studies utilize separation-of-
powers (SOP) models to provide explanations for interbranch interactions. However,
these models often are not employed when examining judicial resolution of foreign
relations disputes. Therefore, it is difﬁcult to determine the extent to which SOP theories
provide analytic leverage to foreign policy litigation. Consequently, a richer set of
theoretical expectations is needed to understand judicial behavior in foreign affairs.

Second, the constitutional authority imposed upon the judiciary extends beyond
balancing disputes between the political branches of government. Courts are responsible

for protecting the civil liberties of citizens within the United States. Nowhere is this

responsibility more important than when judges resolve disputes between the rights of
individuals and the authority of the federal government to engage in foreign affairs or
protect national security. A dearth of empirical analyses exists which systematically
explore patterns of judicial behavior under these circumstances.

Finally, most studies focus exclusively on the United States Supreme Court. The
Federal Courts of Appeals and District Courts receive virtually no attention. With the
Supreme Court gaining more control over its docket, thereby reducing the number of
cases it bears, the decisions of the lower federal courts become more signiﬁcant because
the possibility of review is reduced. Consequently, the Courts of Appeals and District
Courts provide additional constraints on the political branches of government. Therefore,
an examination of all levels of the federal judiciary is essential in understanding how the
courts resolve foreign policy disputes.

This dissertation therefore contributes to the literature on US. foreign policy by
focusing on a historically neglected branch. Additionally, the dissertation contributes to
the literature on judicial decision making by comparing structural differences among the
three levels of the federal court system. Throughout the entire project, certain questions
and themes will be addressed. First, what roles have the federal courts assumed in
resolving foreign policy disputes since World War H; are they defenders of civil liberties
or champions of national security? Second, does the structure of the US. court system

exert a substantial inﬂuence on judicial decision making in foreign policy cases?

FEDERAL COURTS AND U.S. FOREIGN POLICY

Historically, the courts were fundamental participants in the formulation of US.
foreign policy. During the early nineteenth century the judiciary adjudicated several
disputes between the political branches of government over the boundaries of foreign
affairs decision making. In Bas v. Tingy (1800), the Supreme Court ruled that only
Congress is able to declare either an “imperfect” (limited) war or a “perfect” (general)
war. In Talbot v. Seeman (1801), the Court determined that all powers of war are
constitutionally vested in Congress. In Little v. Barreme (1804), Chief Justice Marshall
held that President Adam’s instructions to seize hostile ships were in conﬂict with
Congress and therefore illegal. In 1806, the question whether a president may initiate
hostilities arose in the case United States v. Smith. Justice Paterson concluded, “it is the
exclusive province of Congress to change a state of peace into a state of war.” Finally, in
the Prize Cases (1863) the Supreme Court ruled that the President, in his capacity as
commander-in-chief, possesses the power to repel sudden attacks against the United
States. These early eases demonstrated the judiciary’s assertiveness in deﬁning
constitutional parameters within which the political branches of government operated.

While the courts were active participants in foreign affairs during the early
nineteenth century, the next century witnessed an exercise of j udicial restraint in these
disputes. Increasingly, the courts utilized certain threshold issues such as the political
question and act of state doctrines to limit their involvement in areas of foreign policy
(Goldsmith 1999). Consequently, the President successfully expanded his constitutional
authority. Cases in which the Supreme Court rendered a decision on the merits, such as

United States v. Curtiss- Wright Export Co. (1936) or Korematsu v. United States (1944),

reinforced executive dominance in foreign affairs. Therefore, what most individuals take
for granted regarding foreign relations is the product of a long historical development in
which the courts played a vital role (Rosati 1999, 352).

Unfortunately, due to the apparent deference given by the courts to the political
branches of government - especially the executive — scholars altered the theoretical
lenses through which they analyzed the judiciary. Rather than examining the courts as an
equal branch, the majority of postwar studies utilizing court cases to examine foreign
policy view the judiciary as subservient to either the President or Congress. In 1966,
Aaron Wildavsky published his famous “Two Presidencies Thesis,” arguing that the
President exerts a tremendous inﬂuence on the shaping and implementation of foreign
policy. While scholars ultimately criticized Wildavsky’s thesis (LeLoup and Shull 1979;
Cohen 1982; Edwards 1986; Fleisher et a1. 2000), its publication prompted additional
research of court cases. Subsequent studies examining court cases conclude that the
President reigns supreme in foreign policy (Perlrnutter 1974; Keagle 1985; Cronin and
Genovese 1998; LeLoup and Shull 1999). Countering these arguments are analyses of
court cases concluding that the Congress possesses ultimate authority in the conduct of
foreign policy (Henkin 1972; Schlesinger 1989; Fisher 1995; Harris 1995; Korn 1996).
However, noticeably lacking is a systematic examination of the judiciary’s role in foreign
policy. Silverstein argues while the courts play the least visible role in foreign policy,
their decisions often shape the national debate over constitutional interpretation in this
area and inﬂuence the behavior of the other branches of government (1997, 6-7).

Therefore, an empirical examination of the courts’ inﬂuence on foreign policy — as the

third component of the US. governmental triumvirate — is essential to understand where
they ﬁt within the foreign affairs puzzle.

Constitutional law theories on governmental authority and separation of powers
are useful in assessing how judicial actions impact United States foreign policy. It should
be noted that these theories differ from political science separation of powers models.
Where the latter assess how institutional preferences and strategic calculations affect
institutional behavior, the former focus on jurisdictional disputes of political and legal
authority. According to these theories, the Constitution empowers the federal government
and structures the distribution of powers, including those related to foreign affairs
(Diament 1998, 912-913). The interdependent structure of constitutional authority creates
an “invitation to struggle” among three separate branches of government, with each vying
to expand its sphere of inﬂuence (Corwin 1957, 171). According to Spitzer (1993), the
realm of foreign affairs has been central in shaping intergovernmental relations. As the
President and Congress expand their constitutional capabilities, individual civil liberties
are often sacriﬁced. The Nixon Watergate scandal and the McCarthy congressional
hearings provide two examples of abuses of power by the political branches in the name
of national security. However, as the Constitution dictates, the courts are responsible for
protecting the rights of citizens within the United States. This creates a paradox for the
courts when called upon to resolve foreign policy disputes:

The courts have no authority to conduct US. foreign relations. They are,

however, authorized to adjudicate all cases or controversies properly

before them in accordance with applicable law. Their function is essential

to the maintenance of the separation of powers among the branches and

the protection of individual rights. Since no other branch has the authority

to exercise the judicial power, practices that permit the Executive [or

Legislature] to exercise unilateral decision-making authority in particular
court cases may be inconsistent with the constitutional plan. On its face,

the Constitution does not exclude or limit the courts’ authority in cases or

controversies touching on foreign relations. Furthermore, matters with

foreign relations implications may involve the legal rights and duties of
individuals or the states under federal law, clearly within the courts’
authority. Judicial deference or abstention in such cases may compromise

the authority of the federal courts (Chamey 1989, 807).

If the executive or legislative branch exercises unilateral decision-making in foreign
relations and infringes upon individual rights, are the courts abdicating their
constitutional authority by deferring to those branches? According to Judge Arlin Adams,
“among the more perplexing dilemmas faced by a democratic society is that of securing
its territorial and institutional integrity, while at the same time, preserving intact the core
liberties essential to its existence as an association of truly free individuals” (United
States v. Butenko 1974). A systematic analysis of foreign policy cases is necessary to
examine how the courts resolve the paradox described by Professor Chamey and Judge
Adams.

Are the courts defenders of civil liberties or champions of national security? The
Restatement (Third) of Foreign Relations Law of the United States (1986), Section 721
states “the provisions of the United States Constitution safeguarding individual rights
generally control the United States government in the conduct of its foreign relations.”
According to this component of the American legal system, the conduct of foreign affairs
should not violate the civil liberties of US. citizens. However, as Dorsen (1989, 1997)
argues, “foreign affairs, and its close relation, national security, have usually been

graveyards for civil liberties. This is true even though governmental authority in the

foreign sphere is not exempt from the liberty-bearing provisions of the Constitution.”

ORGANIZATION OF DISSERTATION

To examine judicial inﬂuences in US. foreign relations, the dissertation is
organized into the following chapters. Chapter Two focuses on the theoretical
foundations surrounding judicial decision-making in foreign affairs and potential
constraints judges encounter that are imposed through a hierarchical judicial structure.
Chapter Three conducts an initial empirical analysis of the federal judiciary. Each level of
the judiciary is analyzed separately to determine isolated inﬂuences on judges’ decisions.
Chapter Four focuses on the hierarchical relationship between the U..S Courts of Appeals
and the Supreme Court. Chapter Five explores a similar relationship between the Federal
District Courts and the Courts of Appeals. Finally, Chapter Six offers concluding remarks
and speculates how the September 11th attacks may have changed the nature of foreign

policy concerns with the federal judiciary.

CHAPTER ONE: THEORETICAL FOUNDATIONS

T o understand the impact of constitutional interpretation in foreign policy requires a

clear understanding of the role played by the judiciary.3

Assessing the impact of the federal judiciary on US. foreign policy is not an easy
task. Initially, one must ascertain the nature of foreign policy. A precise deﬁnition of this
concept is not altogether clear; experts disagree about the ﬁrndarnental aspects of foreign
affairs. Some deﬁnitions focus exclusively on the nature of military power whereas
others include aspects of “soft power,” such as economic, political and cultural
superiority. Once a useful deﬁnition is obtained, one must then identify the relevant
theoretical lenses from which to analyze judicial inﬂuences. To do so adequately requires
an understanding of several different literatures: international relations/foreign policy
theories, constitutional/legal theories, and theories of judicial politics (including
individual behavioral and institutional theories). It is then necessary to draw relevant
components from each of these literatures into a single, cohesive theoretical framework.
Addressing these potentially daunting tasks is the therefore the focus of this chapter. As I
explore the broad insights of each theoretical literature, my goal is to raise several

questions that will assist in formulating speciﬁc hypotheses for later chapters.

DEFINITIONS OF US. FOREIGN POLICY
During the height of the Cold War deﬁning US. foreign policy was a relatively

simple task. While the majority of scholars and interested individuals may have offered

 

3 Silverstein 1997, 21.

10

different terms, the fundamental core deﬁnition would have involved military power and
the preservation of our ‘national interests.’ Additionally, the core deﬁnition would focus

on the nation-state as a unitary actor, and its relations with other states in an international
system.

A strong consensus existed within the United States surrounding foreign policy
and, consequently, this created a unique environment with few legal or political
challenges to the foreign policy apparatus (Fry, Taylor and Wood 1994, 13), sometimes
referred to as the military/industrial complex. However, the Vietnam War destroyed this
consensus by “eroding the conﬁdence” most individuals had in governmental authority
(Sinclair 1993, 210). This, in turn, led to increasing challenges surrounding the concept
of ‘foreign’ versus ‘domestic’ politics.

Contemporary deﬁnitions of foreign policy are becoming increasingly vague and
more inclusive. As Wittkopf and Jones (1999, 5) note,

Today globalization — which may be deﬁned as ‘the intensiﬁcation of

economic, political, social, and cultural relations across borders’ — has

radically altered the context of American foreign policy, as the spread of
democracy and market economies has contributed to the homogenization

of economic, social and cultural forces worldwide. In turn, the distinction

long drawn between foreign and domestic politics has become

increasingly arbitrary and dubious, and the geopolitical distinctions among

states on borders and ten’itory are increasingly suspect.

Thus, increases in global interactions have altered the international landscape upon which
traditional deﬁnitions of foreign affairs were drawn. Increasingly interdependent
relationships among states mark the new international system. Consequently, it is the

increase in interdependency that inﬂuences contemporary deﬁnitions of foreign policy;

blurring the distinction between ‘domestic’ and ‘foreign’ politics (Hermann and Hermann

ll

1989; and Ripley and Lindsay 1993). Discussions of American ‘power’ often now refer
to economic stability, cultural exports, and political beliefs in addition to military
supremacy (Wittkopf and Jones 1999).

Adding to the complexity of producing a clear foreign policy deﬁnition is the
increase in the number of actors contributing to the foreign policy arena, each vying to
expand its sphere of inﬂuence. Fry, Taylor and Wood (1994) state,

It should be clear by now that there is not a foreign policy of the United

States —- there are instead foreign policies, each pursued by some foreign

policy agency, bureau, or department. And it is not uncommon for these

policies to b e c ontradictory. In addition to the traditional foreign p olicy
processes and institutions of the federal government, there are foreign
policies of U.S.-based multinational corporations, foreign policies of state

and even local governments, and foreign policies of a variety of interests

groups... This process is played out on both the domestic and the global

stage in a very competitive environment.

An accurate deﬁnition of US. foreign policy, therefore, should account for the policies of
these (and other) actors because they will pursue different agendas (Ripley and Lindsay
1993), often under the rubric of the United States’ ‘national interest.’ However, creating a
deﬁnition based on the policies of various actors introduces several levels of complexity
within empirical models; levels which become difﬁcult to operationalize and measure.
Therefore, a simpler deﬁnition — which still accounts for an increased number of foreign
policy issues (beyond military disputes), not necessarily an increased number of actors —
is required.

The traditional view of foreign affairs places the US. Department of State as the
primary agency for developing foreign policy (Fry, Taylor and Wood 1994, 39). As such,

a deﬁnition of foreign policy subsequently involves any issue for which the State

Department could inﬂuence or develop policy: diplomatic relations with other nations,

12

economic issues with foreign nationals, states or international corporations, immigration,
international law, military relations, etc. Thus, a deﬁnition of foreign policy must assume
that those issues can “be seen along a continuum from [the] most purely foreign to the
most intimately linked with domestic issues” (Henehan 2000, 55). My conceptualization
of foreign policy follows this continuum, thereby allowing for a wider range of issues to
be linked to the foreign arena. I deﬁne foreign policy as any issue for which the State
Department may take action. This deﬁnition does not imply that the State Department
must actively participate for the issue to be classiﬁed as foreign policy, thereby allowing
other actors to engage in the foreign policy sphere. Additionally, the deﬁnition is
deliberately vague regarding the types of issues classiﬁed, thereby allowing the
continuum of issues (according to Henehan) to be included in the categorization. Thus,
foreign policy issues include examples such as disputes with the military, immigration
and citizenship issues, disputes between the United States and foreign governments,
citizens or foreign corporations. These disputes can occur within the territorial boundaries
of the United States or abroad. Given the conceptual difﬁculties identiﬁed in this section,
I believe this more inclusive deﬁnition is necessary to capture the myriad manifestations

of foreign policy issues.

INTERNATIONAL RELATIONS/FOREIGN POLICY THEORIES

Theories of international relations and foreign policy have tended to gravitate
within two distinct groups: realism and liberalism. Each theory offers a lens with which
to examine judicial inﬂuences in foreign affairs. This section explores both theories and

develops broad expectations based on their predictions.

13

On initial inspection, one is not led to believe the theories of realism in
international relations offer much analytical leverage for studying judicial behavior in
foreign affairs. The realist paradigm focuses on the actions of the state as the unit of
analysis, and consequently, internal political struggles are excluded from realist analyses
(Morgenthau 1972; Waltz 1988). As Holsti (1995, 37) acknowledges, “because the
central problems for states are starkly deﬁned by the nature of the international system,
their actions are primarily a response to external rather than domestic politic forces.”
Thus, a scholar employing the realist paradigm would assume potential judicial
inﬂuences irrelevant since the ‘state’ operates in response to other ‘states’ and not in
response to internal stimuli.

However, theories of realism do offer a single insight for my analysis. If,
according to realist principles, the state is considered the highest authority then those
internal components which realism assumes irrelevant should work to ensure the survival
of the state. Stated another way, governmental institutions will “come together” when the
state faces a challenge from another nation. From a judicial politics perspective, the
courts should therefore defer to governmental authority when the ‘state’ responds to an
external (i.e., foreign) stimulus. Certainly, one would expect the magnitude of the
external stimulus to affect judicial behavior; judges would view the authority of the
government to combat terrorist attacks within the United States differently than the
govemment’s authority to regulate international commerce. Regardless of this potential
difference, the realist paradigm leads one to believe that judges would initially favor the

government’s position in foreign affairs litigation.

14

In contrast to the realist paradigm in international relations are neo-liberal theories
which focus on the internal operations of nation-states as a major inﬂuence. “Rather than
assuming with the realists that the state can be conceptualized as a ‘black box’ — that the
domestic political processes are both hard to comprehend and generally superﬂuous for
explaining its external behavior — decision—making analysts believe one must take these
internal processes into account” (Holsti 1995, 47). Thus, liberal theories of international
relations contend that individuals within the state, and the internal dynamics of
institutional norms, substantially impact the conduct and formulation of foreign affairs
(Holsti 1968; Allison 1969). The fundamental core principles of liberalism in
international relations recognize the importance of domestic politics in the formulation
and conduct of foreign relations. These principles emphasize understanding internal
dynamics as an inﬂuence on foreign policy. Consequently, liberal theories accept a role
for the judiciary in developing foreign policy, and encourage researchers to examine the
institutional and political dynamics of the courts when analyzing their inﬂuence on the
decision-making process. However, liberal theories provide little guidance in predicting
or understanding the internal dynamics of the judiciary. Therefore, one must explore a
different literature to discern expected patterns of j udicial behavior in foreign affairs
litigation.

In sum, theories of international relations are useful in ascertaining broad pattems
of behavior for the judiciary. The realist paradigm leads to the conclusion that judges will
be sensitive to governmental authority in cases where the development of foreign policy
is a response to an external stimulus. The neo-liberal challenge to realism asserts that

foreign affairs decisions are the result of internal dynamic processes, which may be

15

constrained by various institutional and political pressures. However, while international
relations theories assist in identifying broad patterns of behavior, they are not helpful in

generating a coherent theory for judicial involvement in foreign affairs.

CONSTITUTIONAL/LEGAL THEORIES

In this section I explore the contributions that constitutional and legal theories
provide for an analysis of judicial behavior in foreign affairs litigation. These theories
provide support for the argument that a systematic examination of judicial inﬂuence is
essential. However, questions remain pertaining to offered insights about expected
behaviors of judges when confronted with questions of foreign policy and civil liberties.

In 1975, Judge Skelly Wright warned that although the attempt to “inﬁ'inge liberty
in the name of national security and order may be motivated by the highest of ideals, the
judiciary must remain vigilantly prepared to fulﬁll its own responsibility to channel
[foreign policy] action within constitutional bounds” (Zweibon v. Mitchell quoted in
Frank 1989, 767). However, questions remain as to whether the judiciary is vigilantly
prepared to accept this responsibility, and under what constitutional provisions judges are
empowered to pursue this responsibility.

The United States Constitution divides foreign relations authority between the
legislative and executive branches of government, with a signiﬁcant sharing of these
responsibilities. For example, the power to engage in a military operation is authorized in
both Article I — granting Congress the authority to declare war and to raise and establish
the military —- and Article H — authorizing the President to lead the military as

Commander-in-Chief. Similarly, the authority to negotiate agreements internationally is

16

given to the President initially, with the advice and consent of the Senate. Thus, the
overlapping of authority creates an “invitation to struggle” (Corwin 1957), whereby the
separate branches of government diligently pursue additional powers. Since the
Constitution does not explicitly distinguish between domestic and foreign affairs
(Peterson 1994), the judiciary often is involved in settling questions of foreign policy
powers (Fry, Taylor and Wood 1994, 17). Genovese (2001 , 10) illustrates this struggle
when he mentions, “the skeleton-like provisions of Article II [in foreign affairs] have left
the words open to deﬁnition and redeﬁnition by courts. . ..”

Therefore, while the courts may not actively formulate the foreign policies of the
United States nor engage in relations with foreign entities, many judicial actions directly
and indirectly affect these areas. For example, federal courts can apply (or deny
application of) a US. statute extraterritorially, interpret an international or bilateral
treaty, or adjudicate the validity of a foreign act of state (Goldsmith 1999, 1398).
Additionally, since issues with foreign policy implications often involve the legal rights
and duties of individuals, states or businesses under federal law, the resolution of these
disputes may constrain foreign relations (Chamey 1989, 807). Consequently, the
judiciary has been crucial in deciding the parameters and boundaries of legitimate
behavior (Rosati 1999, 352).

Unfortunately, while the Constitution provides authority for judicial intervention
and while legal institutions are critical for preserving the values essential to civilized
states (Darnrosch 1991), many contemporary judges are reluctant to review the merits of
foreign policy disputes. Smith (2002) acknowledges a “tension between the

contemporary judiciary’s commitment to the protecting of constitutional rights and the

17

judiciary’s persistent tendency to defer to the executive branch, [especially] in times of
national crisis.” Judges seem unwilling to challenge governmental authority when
confronted with questions of foreign policy. Often this unwillingness occurs through the
utilization of various threshold requirements, such as the political question of act of state
doctrine, actions which further support an apparent, unlimited deference to the
government (Dorsen 1989, 843). However, while the political question doctrine often is
relied upon to dismiss foreign policy cases, other cases with signiﬁcant foreign relations
implications are adjudicated on the merits — often without discussion of the political
question doctrine — leading some scholars to conclude that the judiciary’s treatment of
foreign affairs suffers from “jurisprudential chaos” (Goldsmith 1999, 1403).

How are judges supposed to resolve this apparent confusion? On the one hand,
there is a strong tendency to defer to governmental authority. This proclivity is premised
on the belief that courts lack competence to make foreign relations judgments (Goldsmith
1999, 1418). On the other hand, several notable legal scholars — including Supreme Court
Justices — argue for the judiciary to remain vigilant in the preservation of civil liberties.
At a speech delivered to the Law School of Hebrew University, Justice William Brennan
declared, “the struggle to establish civil liberties against the backdrop of security threats,
while difﬁcult, promises to build bulwarks of liberty that can endure the fears and frenzy
of sudden danger — bulwarks to help guarantee that a nation ﬁghting for its survival does
not sacriﬁce those values that make the ﬁght worthwhile.” Consequently, from a
theoretical perspective, the constitutional and legal literatures do not provide extensive
insights into judicial behavior in foreign affairs. At best, one can expect strong judicial

deference to governmental authority. However, with advocates such as Justice Brennan

18

promoting increased judicial participation in foreign relations litigation, it is possible that
judges will challenge the notion of governmental deference. In order to determine which
judges may be inclined to ‘defend civil liberties’ and under what conditions those judges
_will not feel constrained (either through institutional pressures or the policy preferences
of other actors) to rule in favor of governmental interests, one must turn to the literature

of judicial politics.

THEORIES 0F JUDICIAL POLITICS

Theories of judicial politics focus on the individual behavior of judges, often in
relation to institutional, political or legal constraints. As such, these theories are useful for
analyzing judicial resolution of foreign policy disputes, an area where these various
constraints often converge. This section ﬁrst explores theories of individual behavior,
focusing on the impact of attitudinal and strategic inﬂuences on judges. I then discuss
institutional constraints on judges, particularly those on the lower federal courts, focusing
especially on the hierarchical relationship among the three tiers of the federal judiciary.

The most prominent theory of judicial behavior argues that judges cast votes
according to their personal policy preferences (Segal and Spaeth 1993, 2002). When
explaining the fundamental tenets of the “attitudinal model” Sega] and Spaeth comment
on certain institutional features that facilitate the application of this theory to the Supreme
Court. Speciﬁcally, the justices are free to vote their sincere preferences through a
combination of three institutional facets: discretionary control over the docket, lack of
higher political ambition, and the existence of no higher judicial authority (1993, 70-72).

However, the authors do not empirically test these assertions in the lower courts.

19

Subsequent analyses have provided initial evidence that institutional features
constrain individual behavior of j udges in the federal district courts (Rowland 1991;
Mather 1995) or state supreme courts (Brace and Hall 1990). Yet, questions remain
regarding the precise relationship of these constraints to judicial outcomes. For example,
if judges are motivated by policy concerns as the attitudinal model suggests, then
researchers need to identify the extent to which all levels of the federal judiciary make
policy. Jacob (1965, 1991) argues that trial courts are not policy-making institutions
because the judges typically conﬁne their decisions to norm enforCing declarations.
Contradicting this argument, Mather (1991) and Rowland (1991) contend trial courts can
either restrict or expand policy through their decisions and that their ability to frame legal
issues extends beyond norm enforcement thereby impacting judicial policy. Given this
debate, it is apparent that more research is needed to better understand the extent to which
the attitudinal model (and speciﬁcally its institutional assumptions) applies all levels of
the federal judiciary.

If the tenets of the attitudinal model remain consistent, regardless of institutional
characteristics, then one should expect judges at all levels to render decisions according
to their personal policy preferences. That is, liberal judges should be more inclined to
favor a pro-individual position when reviewing a civil liberties claim. Conversely,
conservative judges should be more likely to rule in favor of governmental interests in
foreign affairs.

Related to the attitudinal model is the notion that judges engage in strategic
behavior. This theory recognizes that judges possess personal policy preferences, but also

acknowledges that many courts are collegial (the federal district court being an exception

20

most times) and that judges must weigh their preferences against the preferences of their
colleagues (Murphy 1964, Epstein and Knight 1998). Most of the empirical research in
this area has focused on internal dynamics within the US. Supreme Court (Maltzman and
Wahlbeck 1996a, 1996b; Maltzman, Spriggs and Wahlbeck 2000). However, as Batun
(1997, 115) acknowledges, we know little about the strategic inﬂuences among courts in
relation to their institutional characteristics.

One important institutional feature of the federal judiciary is its hierarchical
structure. Cases initially appear in the District Courts for trial, are then appealed to the
Circuit Courts of Appeals for review and, in rare instances, are reviewed by the Supreme
Court. Due to this vertical structure and to the legal concept of stare decisis, decisions
rendered by higher tribunals are considered binding precedent by lower courts. Several
scholars have examined lower court treatment of legal precedents and concluded that
inferior judges generally adhere to Supreme Court pronouncements of law (Gruhl 1980;
Johnson 1987; Songer and Sheehan 1990). Additionally, lower court judges tend to
follow ideological trends from these higher tribunals (Baum 1980; Songer 1987; Songer,
Segal and Cameron 1994). According to Baum, the reason for compliance by lower court
judges is that while those judges seek to set doctrine near their personal ideal points, they
realize that doing so increases the chance of being reversed by a higher court. Therefore,
judges “must balance their preferences against the preferences of [the higher] court and
sometimes take positions that diverge from their own preferences in order to avoid
reversals that would move policy even further from those preferences” (1997, 115).

In order to understand the inﬂuence of this hierarchical relationship, scholars have

turned to principal-agent theory. The fundamental premise behind this theoretical

21

construct (see Brehm and Gates 1997 for a more detailed explanation) is that the principal
seeks to produce results according to his personal preferences. However, due to a lack of
resources the principal cannot review every aspect of a particular policy arena. Therefore,
the principal “delegates some rights... to an agent who is bound by a (formal or informal)
contract to represent the principal’s interests...” (Eggertsson 1990, 40). The tension
within this relationship arises because the agent also seeks to produce results according to
his personal preferences, which may not be similar to those of the principal. The
difﬁculty for the principal involves establishing substantial controls, inducements or
other enforcement mechanisms to ensure that the agent does not deviate from the
principal’s preferences (Shepsle and Bonchek 1997). Yet, because a principal cannot
develop perfect enforcement mechanisms and due to information asymmetries between
the principal and the agent, it is always possible for the agent to “Shirk.”

Consequently, principals are required to monitor the agent to determine whether
the latter is being faithful to the forrner’s preferences. Since principals possess limited
resources (a reason for entering the principal-agent relationship) they must make choices
about which aspects will be examined. “A moral hazard, according to the principal-agent
literature, arises when the principal measures compliance by a single proxy or indicator,
thereby lessening [his] effort in monitoring” (Benesh 2002, 8). Reliance on this single
proxy, however, may allow potential shirking to exist in other areas not measured by the
indicator. Conversely, principals can rely on adverse selection mechanisms to ensure
compliance. This occurs when the principal hires an agent based on a single identiﬁable

trait or characteristic which the principal believes ensures that the agent’s preferences

22

match his own. However, by relying on a single indicator during the hiring phase,
principals may ignore other signals, which better correlate to expected behavior.

Adapting this model to the federal judiciary is relatively straightforward. As
Songer, Segal and Cameron (1994) note, the Supreme Court is the principal with the
lower federal courts serving as agents. If the lower judges served as faithful agents, then
one should expect consistent compliance because judges would “obediently follow the
policy dictates set down by the Supreme Court” (p. 675). However, because the Supreme
Court reviews so few decisions (the equivalent of little monitoring), lower court judges
encounter numerous opportunities to Shirk. Therefore, a question exists about whether
lower court judges view the “fear of reversal” as a legitimate threat.

Empirical examinations of this question traditionally have focused on compliance
with higher court decisions by the “agent” (Songer, Segal and Cameron 1994; Songer,
Cameron and Segal 1995; Benesh 2002). However, because these models focus on
whether lower courts are signiﬁcantly affected by previous Court doctrine, controlling for
various case facts, they do not account for new areas of the law where the doctrine is not
clear. Thus, these ﬁndings are “entirely consistent with the possibility that lower court
judges adhere faithfully to higher court precedents — and so appear responsive in the bulk
of their cases — but ignore their superiors entirely when deciding new questions” (Klein
2002,7)

Therefore, an alternative test of the principal-agent model is whether lower court
judges anticipate the decisions of higher tribunals, and adjust their behavior accordingly.
Klein (2002, 107) acknowledges, “Supreme Court precedents will rarely offer clear

guidance to judges debating new legal rules. When they do not, [lower court] judges

23

might attempt to anticipate the Supreme Court, but they also might not, choosing instead
to rely on their own preferences.”4 One of the main reasons for this anticipation is that
lower court judges do not know whether a Supreme Court precedent will hold in the
future, since the Court occasionally deviates from its own doctrines. Consequently,
adherence to precedent may not induce lower judges to deviate from their own personal
preferences.

Because the Supreme Court might change the applicable rule at any time,

shaping the indeﬁnite future is essentially out of the appellate court’s

hands, and its concern with fashioning a potentially timeless rule is
somewhat reduced. This effect is even more pronounced for a district
court. Its rules will apply to a smaller universe of cases because no court
other than itself will be bound to follow them in the ﬁrture (Caminker

1994,13) ‘

Caminker’s analysis continues to explore qualitatively the extent to which lower court
judges anticipate responses from higher courts. He concludes that prediction (what he
terms as “the proxy model”) occurs quite frequently. If this conclusion is accurate then,
according to theoretical predictions from principal-agent theory, we should expect lower
court judges to change their voting behavior when they anticipate a negative response
(i.e., reversal) by a higher court.

In sum, theories of judicial politics posit that policy-oriented judges will render
decisions according to the personal preferences. However, since the federal judiciary is
organized in a hierarchical structure, the ability of judges to exercise their preferences
may encounter institutional constraints. This is especially true for lower court judges who

recognize that their decisions may be reviewed on appeal by a higher tribunal. Using the

tenets of principal-agent theory, one would expect lower court judges to be “forward-

 

’ Klein’s anecdotal evidence (i.e., interviews with appellate judges) provides inconclusive support about
whether judges engage in anticipatory behavior. This is explored further in Chapter Three.

24

thinking” and anticipate responses ﬁ'om their superiors. Consequently, as the likelihood
of a negative response increases (i.e., as the fear of reversal increases), lower court judges

will strategically alter their behavior accordingly.

CONCLUSIONS

As I mention at the beginning of this chapter, assessing the impact of the federal
judiciary on US. foreign policy is not an easy task. To do so adequately requires an
understanding of several different literatures: international relationS/foreign policy
theories, constitutional/legal theories, and theories of judicial politics (including
individual behavioral and institutional theories). Based on a juxtaposition of these
theories, three general conclusions of judicial behavior are identiﬁed.

First, as a general rule, courts should possess an initial inclination to defer to
governmental authority when adjudicating foreign policy disputes. This proposition is
most supported by the international relations theory of realism. Similarly, however, this
initial proclivity is also supported by constitutional and legal theories, which demonstrate
a judicial bias in favor of the Executive branch. Even some judicial politics analyses
support this contention, demonstrating that courts —- especially the lower courts — often
rule in favor of the federal government (Wheeler et. a1. 1987; Songer and Sheehan 1992).
This initial deference should be even more pronounced if the federal government faces a
challenge to its national security (Cheh 1984).

Second, while the judiciary may possess an initial tendency to rule in favor of
governmental interests, questions remain pertaining to inﬂuences leading judges to rule in

favor of civil liberties claims. Judicial politics theories contend that policy-oriented

25

judges will render decisions according to their personal preferences. Therefore, one can
expect more liberal judges to support civil liberties challenges, and more conservative
judges to rule in favor of governmental interests.

Finally, since judges do not render decision in isolation from other institutional
inﬂuences, as neo-liberal theories of international relations illustrate, one must account
for these potential constraints. One of the most important institutional characteristics of
the federal judiciary is its hierarchical structure. While several scholars have empirically
demonstrated the usefulness of principal-agent theory in explaining lower court
compliance, a systematic analysis of anticipatory behavior by these courts is needed to
determine whether inferior judges base their decisions on the expected behavior of their
superiors.

In exploring these broad theoretical propositions, in Chapter Two I ﬁrst conduct
analyses of the federal courts in isolation. The focus of this chapter is to generate baseline
predictions for the District Courts, Courts of Appeals and the Supreme Court. In Chapter
Three, I then systematically explore the hierarchical relationship between the Supreme
Court and the Courts of Appeals. Finally, in Chapter Four I apply the principal-agent

model to the relationship between the Courts of Appeals and the District Courts.

26

CHAPTER TWO: INDIVIDUAL EXAMINATIONS

The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting
with noiseless foot, and in alarming advance, gaining ground step by step, and holding
what it gains, is engulfing insidiously the governments into the jaws of that which feeds

them.5

Alexander Hamilton, in Federalist No. 78, labeled the judiciary as the “least
dangerous branch” in the federal government. However, since the adoption of the US.
Constitution, the judicial branch has evolved into the most powerful legal institution the
world has known; much to the apparent dismay of Thomas Jefferson (as the quote above
indicates). Unfortunately, when scholars examine this evolution they focus almost
exclusively on the development of the Supreme Court, ignoring the contributions of the
lower federal courts. With the Supreme Court having more control over its docket, and
thereby free to reduce the number of cases it reviews, the decisions of the lower courts
become more signiﬁcant if the possibility of review is reduced. As Moe and Howell
(1999) acknowledge,

All challenges to [governmental authority] will start out, and most will

end, in the lower federal courts — and judges at these courts will have

somewhat different incentives. T hey will 11 ot b e a s c oncemed about the

prestige or integrity of the court system as a whole, and, as numerous as
these judges are, they cannot be expected — just as legislators cannot — to

take concerted action to protect their institutional interests.

In many instances, the lower courts become the defacto court of last resort. Therefore,

excluding the lower federal courts from an examination of the judiciary increases the

 

5 Thomas Jefferson to Spencer Roane (1821); quoted in Dombrowski v. Pﬁster 227 F. Supp. 556 (1964).

27

likelihood that a researcher’s conclusions are institution-centric (i.e., Supreme Court
biased).

This chapter explores judicial inﬂuences in foreign policy litigation across all
three levels of the federal judiciary. While later chapters focus on hierarchical constraints
between levels, the primary focus of this chapter is identifying signiﬁcant stimuli for each
level in isolation ﬁom the structural hierarchy. That is, each level is analyzed separately
to determine potential inﬂuences, under the assumption that the institutional structure
does not constrain behavior (an assumption that is unfounded potentially, but necessary
to determine baseline behavior). The following sections of this chapter explore anecdotal
evidence pertaining to the nature of judicial responsibilities in foreign affairs litigation,
further develop theoretical expectations, specify the research design and analytic methods

employed and empirically evaluate inﬂuences on judicial behavior.

ANECDOTAL EVIDENCE

The quote by Moe and Howell, listed in the previous section, indicates that
federal judges may possess different attitudes and incentives depending on their level
within the judicial system. This notion is further supported by Burbank and Friedman
(2002, 11) when they claim, “failure to examine lower federal courts ignores the
possibility that those institutions possess different incentives for decision-making than the
Supreme Court.” However, anecdotal evidence — including quotations from judicial
opinions and a small number of empirical examinations - tends to offer contradictory
conclusions about the possibility of institutional differences inﬂuencing behavioral

patterns in foreign policy adjudication.

28

The extent to which judicial opinions offer insights into institutional differences
among federal judges’ attitudes is questionable. A brief examination of opinion language
leads to the conclusion that federal judges, regardless of their institutional position, weigh
heavily the rights of individuals versus the authority of the government to engage in
foreign relations. For example, Judge Murphy of the Northern District Court for
California stated, “those who founded this nation placed upon the judiciary the grave
responsibility of safeguarding constitutional rights regardless of from what quarter comes
the attack.”6 Similarly, in the case US. v. Molina-Chaoon, Judge Platt of the Eastern
District Court for New York admonished, “Of course, US. courts must guard against
those situations where overzealous United States law enforcement personnel attempt to...

”7 These opinions indicate that District Court judges

circumvent constitutional safeguards.
are cognizant of their responsibility to ensure individual liberties. However, these judges
also are cognizant of the government’s authority to formulate US. foreign policy. Judge
Zilly of the Western District Court for Washington warns, “court(s) must be particularly
careful not to substitute [their] own judgment as to what is ‘desirable’ or [their] own
evaluation of what the executive branch may have intended by a given policy.”8

Similar sentiments are identiﬁed in the opinions of appeals court judges. Several
cases demonstrate these judges balance their responsibility as ‘defender of civil liberties’
versus the government’s ability to dictate policy. Judge Mumaghan of the Fourth Circuit
writes, “History teaches us how easily the spectre of a threat to ‘national security’ may be

used to justify a wide variety of repressive government actions. A blind acceptance by the

courts... would imperrnissibly compromise the independence of the judiciary and open

 

6 Parker v. Lester 98 F. Supp. 300 (1951).
7 627 F. Supp. 1253 (1986).
8 Cammermeyer v. Aspin 850 F. Supp. 910 (1994).

29

the door to possible abuse.”9 Likewise, the case US. v. US. District Court brings a
statement from Judge Edwards of the Sixth Circuit Court of Appeals, “It is the historic
role of the Judiciary to see that in periods of crisis, when the challenge to constitutional
ﬁeedoms is the greatest, the Constitution of the United States remains the supreme law of
our land.”10 While these cases initially lead to the conclusion that the Courts of Appeals
may be more sensitive to civil liberties concerns, other cases admonish appellate judges
to refrain from intruding upon the government’s (especially the Executive’s) authority to
develop foreign policy. Judge Cummings of the Seventh Circuit COurt of Appeals
captures this judicial balancing role when he states,

While the courts will scrutinize executive and legislative action in several

substantive areas touching on foreign relations, the standard of review in

those cases is nonetheless a very deferential one. For example, an area

concerning foreign affairs that has been uniformly found appropriate for

judicial review is the protection of individual or constitutional rights from

government action.11
The language from these Courts of Appeals’ opinions reﬂects the language issued in the
aforementioned District Courts’ opinions. It is therefore apparent that judges presiding in
the lower federal courts view their responsibilities in a similar fashion. The opinions
consistently stress an initial deference to the policymaking branches of government,
especially in foreign affairs, while at the same time monitoring potential inﬁingements of
constitutional liberties. It is therefore necessary to examine opinions from the US.

Supreme Court to determine if the justices possess different views about their roles and

responsibilities, as alluded to by Burbank and Friedman (2002).

 

9 In re Washington Post Co. 807 F. 2d. 383 (1986).
‘° 444 F.2d 651 (1971).
" Flynn v. Schultz 748 F. 2d. 1186 (1984).

30

Various decisions handed down by the Supreme Court indicate the justices
maintain analogous views of their responsibilities. For example, Chief Justice Warren
claimed, “When [government’s] exercise of one of its enumerated powers clashes with
those individual liberties protected by the Bill of Rights, it is our ‘delicate and difﬁcult
task’ to determine whether the resulting restriction on freedom can be tolerated?”2 The
same year Warren handed down his decision, Justice Black rendered an opinion in which
he concluded, “Our Constitution governs us and we must never forget that our
Constitution limits the Government to those powers speciﬁcally granted or those that are
necessary and proper to carry out the speciﬁcally granted ones.”13 However, the Supreme
Court has also rendered decisions urging judicial restraint in foreign affairs litigation. In
the case Harisiades v. Shaughnessy, the Court stated that matters relating “to the conduct
of foreign relations... are so exclusively entrusted to the political branches of government
as to be largely immune from judicial inquiry or interference.”14

The cases cited from the District, Appeals and Supreme Court(s) provide
somewhat contradictory, anecdotal evidence about potential inﬂuences on judicial role
perceptions. On the one hand, it is apparent that judges from all three levels believe the
courts possess a responsibility to protect individual rights from governmental intrusion,
even in the reahn of foreign relations. This responsibility, however, is to be approached
with initial deference to the government and sensitivity to its authority for formulating
foreign policy. On the other hand, the Supreme Court, on occasion, has recognized that

certain foreign relations matters are beyond judicial review. Therefore, since the

 

‘2 United States v. Robel 389 us. 258 (1967).
'3 Aﬁoyim v. Rusk 387 us. 253 (1967).
“ 342 US. 580 (1952).

31

anecdotal evidence is inconclusive, an examination of previous empirical analyses is
required.

Unfortunately, few analyses focusing on judicial involvement in foreign policy
litigation exist. One notable study, conducted by Ducat and Dudley (1989) analyzes
federal district courts and the adjudication of cases involving presidential power. They
note the “few constraints the courts have imposed upon the executive in peacetime all but
vanish in times of war and national emergency” (p. 99). This conclusion supports the
opinion language urging governmental deference discussed above. In two studies focused
on executive powers and the Supreme Court, King and Meernik (1998, 1999) discover
that the justices generally side in favor of the national government. However, “when
executive powers conﬂict with civil liberties, the Supreme Court tends to take the side of
individual rights.” While these studies are not directly comparable, since Ducat and
Dudley did not test for civil liberties conﬂicts similar to the King and Meernik analyses,
they indirectly support Burbank and Friedman’s (2002) contention about institutional
inﬂuences on judicial behavior. 15 While both lower court judges and Supreme Court
justices possess initial proclivities favoring the federal government, it is unclear whether
both groups respond similarly to civil liberties challenges. The empirical analysis in this
chapter conducts this examination (and also includes the Courts of Appeals) to determine

whether speciﬁc stimuli exert similar inﬂuences across the federal judiciary.

 

'5 The Courts of Appeals are deliberately excluded from this comparison because no previous research has
examined this level in relation to foreign affairs litigation.

32

THEORETICAL EXPECTATIONS

In Chapter One, I presented a broad outline of the general expectations offered by
theories of international relations, constitutional law, and judicial politics. In this chapter,
I speciﬁcally explore behavioral manifestations based on these general expectations.
Since the focus of this chapter is an individual-level examination (i.e., each level of the
federal judiciary in isolation), I exclude potential constraints exerted by the hierarchical
structure. Those constraints are the focus of Chapters Three and Four.

A common element to international relations (particularly the neo-liberal
theories), constitutional law, and judicial polities theories is that internal dynamics
substantially impact individual behavior. One of the most important facets for the
judiciary involves application of the attitudinal model. Scholars relying on the attitudinal
model operate under the assumption that appellate judges are policy maximizers, and as
such will render decisions based on their personal policy preferences (Segal and Spaeth
1993, 2002). However, measuring personal preferences is often difﬁcult. The majority of
research developing quantitative measures is focused on the preferences of Supreme
Court justices (Segal and Cover 1989; Martin and Quinn 2002).16 Comparable
development of qUantitative measures for lower court judges is scarce. Therefore, to
measure the preferences of lower court judges, scholars rely on partisan afﬁliations of
either the judges themselves or of their appointing presidents. ‘7 However, an underlying
assumption of the partisan surrogate is that this measure focuses mainly on preferences
pertaining to domestic issues. One must question whether attitudes toward foreign affairs

elicit similar partisan responses as attitudes towards domestic policy issues. Holsti and

 

'6 See Epstein and Mershon (1996) and Epstein et. al., (1998) for discussion about measurement issues on
the Supreme Court.
17 See Pinello (1999) for a detailed discussion of partisan afﬁliation in the lower federal courts.

33

Rosenau (1986; 1988) rely on survey evidence of American elites to examine this
question. They discover a strong and consistent relationship between domestic and
foreign policy attitudes, which correlate with partisan afﬁliations and ideological beliefs.
Assuming that judges possess similar attitudes as other elites within the United States, I
therefore hypothesize that partisan afﬁliations will be signiﬁcantly related to the
disposition of foreign policy cases. Democratic judges will be more inclined to render
decisions in favor of civil liberties, and Republican judges will be more likely to rule in
favor of foreign policy interests.18 Since the Courts of Appeals and the Supreme Court
are collegial tribunals, this hypothesis applies to their aggregate preferences.

A second aspect of the federal courts involves their adj udicatory responsibilities.
Since the District Courts initially decide disputes, they are responsible for deterrrrining
questions of fact and law. The Courts of Appeals and the Supreme Court are
subsequently responsible for reviewing these initial decisions — with the Courts of
Appeals also responsible for reviewing administrative agency decisions and the Supreme
Court able to review decisions from state courts.19 Since the Courts of Appeals possess
mandatory jurisdiction over District Courts, while the Supreme Court exercises
discretionary control over its docket, for a large majority of cases the appeals courts serve
as the court of last resort. According to Songer (1991), “as the number of litigated cases
grows both quantitatively and in complexity, while the number of cases reviewed by the
Supreme Court remains static, the role of the courts of appeals as the ﬁnal authoritative
policymaker in the interpretation of many areas of federal law expands apace.” Therefore,

it is important to determine how the appellate levels exercise their error correction

 

'8 These directions reﬂect traditional liberal and conservative decisions in foreign affairs.
’9 It should also be noted that the Supreme Court possesses original jurisdiction (which is rarely excercised)
in a small number of disputes, mostly between states and in cases involving foreign diplomats.

34

responsibilities in relation to District Court decisions. Stated another way, does a
systematic difference exist between the appeals courts and the Supreme Court in terms of
their handling of lower court decisions? Previous research on these appellate error
correction responsibilities indicates that judges on the Courts of Appeals are more likely
to afﬁrm District Court decisions (Davis and Songer 1988; Songer and Sheehan 1992). In
contrast, an examination of reversal rates in the US. Supreme Court indicates that this
judicial body is more prone to reverse lower court decisions than afﬁrm (Epstein et. al.,
1996). Therefore, if the District Courts rule in favor of civil liberties claims over the
interests of the federal government, I hypothesize that the Courts of Appeals will adhere
to these rulings and render a similar decision, or vice versa. Conversely, the Supreme
Court will be more likely to reverse an appeals court decision (this is especially true if the
appeals courts and the District Courts issue contradictory rulings, thereby causing
dissensus within the judicial system as Perry (1991) discovers).

A ﬁnal institutional aspect of the federal courts involves caseload considerations.
According to the principles of the judicial system in the United States, litigants are
entitled to their ‘day in court’ and also to one appeal. As such, the federal District Courts
and the Courts of Appeals, since they possess mandatory jurisdiction, serve as the
reviewing entities for most disputes. Unfortunately for these judges, this often translates
into increased caseloads as more litigants turn to the courts for relief. As lower courts
experience increasing caseloads in a given year (in contrast to the Supreme Court whose
annual caseloads have remained relatively static), it is plausible that the judges will work
diligently to process all the cases on the docket. Failure to clear all the cases results in

additional backlogs into the next year, which further increases that year’s caseload. Since

35

time is a ﬁnite commodity, judges may be inclined to ﬁnish drafting opinions as quickly
as possible. However, foreign policy cases may present unique issues and conﬂicts
toward which judges are unfamiliar; issues which often focus on the foundational
principles and theories of democratic governance. According to legal scholars foreign
affairs often involve constitutional issues related to the distribution of federal government
powers (Diament 1998, 912-913). The interdependent structure of constitutional authority
creates an “invitation to struggle” among three separate branches of government, with
each vying to expand its sphere of inﬂuence (Corwin 1957, 171), With the expansion
often occurring to the detriment of civil liberties (Dorsen 1989). To render a decision
against federal interests increases the likelihood of appeal by the government, which in
turn increases the potential for review by higher courts. Consequently, judges will need to
take more time to ensure the legal principles upon which the decision is grounded are
sound, and the language written to minimize this potential. Initially, lower court judges
may therefore be inclined to rule in favor of foreign policy interests so as to quickly
dispose of an opinion. Thus, I hypothesize that increased caseloads will pressure judges
to quickly dispose of cases, which in turn increases the likelihood of a decision in favor
of foreign relations authorities.

Certain legal issues, raised by litigants, also are expected to impact judicial
decision making in foreign affairs. Previous studies indicate that the presence of a
speciﬁc constitutional challenge increases the likelihood that courts will rule against the
interests of the federal government (Burgess 1992; King and Meernik 1998, 1999). While
judges initially may be hesitant to rule against the government in foreign policy cases, if

individuals identify a speciﬁc constitutional violation, I hypothesize the likelihood of

36

judicial opposition to foreign affairs initiatives increases. Additionally, the presence of a
claim citing international law or treaty obligations may affect judicial behavior. A limited
number of studies demonstrate that American courts are becoming increasingly more
sensitive to claims of international law violations (F orsythe 1990; Rogoff 1996; and
Scheffer 1996). Norms of international law or provisions within bilateral or multilateral
treaties often attempt to explicitly identify individual rights against which governments
cannot intrude. While many courts in the US. are hesitant to cite international law as
precedent (especially in opposition to the federal government), these studies indicate that
judges may rely on international legal principles to extend individual protections.
Therefore, I hypothesize the presence of an international law or treaty claim will increase
the likelihood of federal courts rendering decisions in favor of civil liberties.

A ﬁnal set of legal or case variables are needed to control for potential effects of
issues, not necessarily raised by litigants. First, several studies comment on the deference
given by judges to the federal government when threshold issues (especially a political
question or act of state doctrine issue) are present (Halberstam 1985; Chamey 1989;
Franck 1992; Rehnquist 1998; Bland 1999; Barron 2000). These analyses indicate federal
courts often employ threshold issues in order to refrain from addressing the merits of
cases that challenge federal authority to engage in foreign affairs. Similarly, if the
government raises a national security defense, courts are unlikely to rule against foreign
relations (Cheh 1984; Dorsen 1997). Therefore, if judges are asked to resolve either a
threshold issue or a defense of national security, I hypothesize that they will be more
likely to rule in deference to foreign policy interests. Finally, scholars note that some

judges are sensitive to speciﬁc case issues (Songer 1987; Songer, Sheehan and Haire

37

2000; Zorn 2002). I therefore include a variable to control for criminal cases since many
of these issues, especially on appeal, are frivolous. When federal judges, at any level,
confront these frivolous challenges to foreign policy initiatives it is difﬁcult for them to
support criminal defendants. Consequently, I hypothesize that the federal courts will be
more likely to rule in favor of foreign policy interests when confronted with a criminal

case.

RESEARCH DESIGN AND METHODS

Data for this analysis come from an original sample of federal court decisions
involving foreign affairs and civil liberties, ﬁom 1946-2000. While the cutoff points in
the timeline are somewhat arbitrary, a rationale exists for this choice. The sequence
begins in 1946, a year in which the United States transitioned from World War H and to
the Cold War (as one of two international superpowers), and reorganized some of its
bureaucratic agencies accordingly — most notably the foreign policy and intelligence
gathering agencies. Additionally, with the creation of the United Nations the international
system entered into a new era with nations becoming increasingly interdependent. To
include cases before 1946 risks analyzing qualitatively different issues; issues arising
before World War II — when the United States possessed a different perception of its
international responsibilities — and also from the war itself. Similarly, the time sequence
ends at the year 2000 so as to not include cases arising under a new presidential regime
(George W. Bush) and, more importantly, issues following the September 11, 2001,
terrorist attacks. Chapter Five explores in more detail how US. foreign policy issues may

have changed after September 11, and raises questions for future research.

38

Cases for this analysis were identiﬁed using a Lexis-Nexis keyword search.
I retrieved numerous cases for each federal judicial level using the following issues as
keywords: foreign policy, foreign affairs, national security, national defense, war powers,
military, immigration, international law, treaties, ambassadors, and diplomacy. Initially, I
identiﬁed approximately 10,000 cases each for the District Courts and the Courts of
Appeals, and 400 cases for the Supreme Court. Further scrutiny (i.e., eliminating
observable economic cases and retaining potential civil liberties cases) reduced this
number to approximately 2900 District Court cases, 2700 Courts Of Appeals cases, and
exactly 116 Supreme Court decisions involving a civil liberties violation in combination
with the various foreign relations issues.20 As I state at the beginning of this dissertation,
the primary focus of this research is to examine how federal judges balance claims of
civil liberties against foreign policy issues. Therefore, I exclude cases that do not possess
a civil liberties claim, though a foreign policy issue is present. Similarly, I exclude civil
liberties cases that are not combined with a foreign policy issue. I deﬁne civil liberties as
the fundamental freedoms ﬁ'om which individuals are protected against governmental
intrusion (Epstein and Walker 1998; Domino 2003). Examples of civil liberties include
First Amendment protections of ﬁ'ee speech and press, Fourth, Fifth and Sixth
Amendment protections for individuals subjected to the criminal justice system, and other
rights or protections (such as access to an open government). Random samples for the
lower federal courts were drawn subsequently from these remaining cases, with the

universe of Supreme Court decisions included. Decisions for each judicial level were

 

2° It is important to note that this number reﬂects decisions with published opinions. A cursory examination
of unpublished decisions contained with the Lexis-Nexis database reveal that these decisions often involve
trivial, mundane issues, and do not contain detailed opinions, nor are they considered precedent by the
appellate courts. For these reasons, they are excluded from the analysis. However, it is necessary to note
that the conclusions are generalizable only to published decisions.

39

coded according to litigant characteristics, legal issues, ﬁnal disposition, and judge
characteristics.”

The dependent variable for this analysis is whether the federal courts voted in
favor of foreign policy interests (coded as ‘0’) or against foreign policy interests (coded
as ‘1’). It is important to note that the federal government does not have to be a litigant to
a particular case in order to express a foreign policy interest in the outcome. For example,
one case involved a Freedom of Information Act (F OIA) claim against Lockheed Martin
for the details of certain defense contracts, alleged to be public information. In this
instance, a ruling in favor of the F OIA claim would be coded as against the interests of
foreign relations, whereas a ruling in favor of Lockheed Martin to keep the records secret
would be coded in favor of foreign affairs. Since the dependent variable is dichotomous,
linear regression models are insufﬁcient (Maddala 1983; Aldrich and Nelson 1984;
Eliason 1993; Long 1997). I therefore rely on maximum likelihood techniques to specify
appropriate multivariate models.

As I mentioned earlier in this chapter, measuring the personal preferences of
judges (especially lower court judges) is extremely difﬁcult.22 Consequently, I rely on the
partisan afﬁliation of a judge’s appointing president to serve as proxy for preferences.
Initially judges appointed by Republican presidents are coded ‘0’ and those appointed by
Democratic presidents are coded ‘1’. However, since the unit of analysis is aggregated to
the court level, individual preference measures are combined. This combination is
captured through the independent variable Court Partisanship, which is deﬁned as the

proportion of judges appointed by Democratic presidents. Since the majority of District

 

2' See Appendix 1 for the coding rules employed during data collection.
2‘ See Randazzo and Sheehan (2001) for a more detailed description of the difﬁculties inherent in
empirically measuring personal preferences of appellate judges.

40

Court decisions are delivered by a single judge, values for this variable will be either ‘0’
for a Republican appointment or ‘1’ for Democrat. However, in those instances in which
the District Court sits as a three judge panel, and for the Courts of Appeals and the
Supreme Court, the values for Court Partisanship will range from ‘0’ to ‘1’ with most
entries falling proportionately within those extremes. As indicated previously, I
hypothesize that Democratic judges will be more likely to rule against foreign policy
interests (i.e., to rule in favor of civil liberties). Therefore, I expect a positive relationship
to exist between Court Partisanship and the dependent variable; as the proportion of
Democratic judges on a court increases, the likelihood of a decision favoring civil
liberties claims will increase.

The variable Lower Court Directionality measures the case disposition by the
district court or federal agency conducting the trial. The variable is coded ‘1’ if the lower
court (or agency) ruled in favor of foreign affairs interests, ‘2’ if the court rendered a
mixed decision (both for and against governmental interests), and ‘3’ if the court ruled
against federal government interests. Theoretical expectations indicate the Courts of
Appeals will be more likely to afﬁrm a District Court (or administrative agency) ruling
and the Supreme Court more likely to reverse the lower court ruling. Therefore, I
anticipate a positive relationship to exist for the Courts of Appeals and a negative
relationship to exist for the Supreme Court.

The effects of caseload constraints are captured in the variable Workload. This
variable is measured using annual per capita caseload statistics, and comes from a variety
of sources. Caseload statistics for the Supreme Court 1946-1995 Terms are recorded in

The Supreme Court Compendium (Epstein et. al. 1996). Statistics for the 1996-2000

41

Terms were calculated directly ﬁ'om The Original Supreme Court Database, compiled by
Harold J. Spaeth.23 Stefanie Lindquist, at the University of Georgia, provided per capita
caseload statistics for the Courts of Appeals. Unfortunately, I have yet to obtain data on
the District Courts.24 Therefore, these statistics are calculated using the appeals court
data. Each circuit’s annual caseload is initially divided among the number of states per
circuit. Per capita estimates are subsequently calculated based on the number of District
Court judgeships per state. As I mentioned above, increases in per capita caseload should
constrain judges from rendering decisions against the government’s foreign policy
interests. Therefore, a negative relationship should exist between the variable Workload
and the dependent variable.

The complexity of speciﬁc cases could be the result of certain challenges or
issues. Five dummy variables measure legal issues that might appear within a case.
Constitutional Challenge tracks whether a litigant alleges a speciﬁc constitutional
violation (i.e., a violation of the Fifth Amendrnent’s Due Process Clause). I hypothesize
that judges may be sensitive to constitutional challenges, and consequently, will be more
likely to rule in favor of civil liberties claims. The variable International Law or Treaty
measures the presence of an issue related to international law or treaties signed by the
United States (both bilateral, such as extradition treaties with speciﬁc countries and
multilateral, such as the Geneva Convention). These treaties, or other facets of
international law, often deﬁne speciﬁc rights afforded to individuals that governments

should not trespass. I hypothesize that the presence of a claim focused on a violation of a

 

23 Data archived at the Michigan State University Program for Law and Judicial Politics
www.polisci.msu.edu/pljp.

2’ Several attempts to contact the Administrative Office of the US. Courts (the data clearinghouse for the
federal judiciary) has not proved beneﬁcial.

42

speciﬁc treaty or norm of international law will persuade federal judges to rule in favor of
individuals (i.e., against the interests of the federal government). A positive relationship
should exist between the variables Constitutional Challenge and International Law or
Treaty and the dependent variable.

The ﬁnal three legal issue variables are hypothesized to be negatively related to
the dependent variable. The dummy variable Threshold Issue measures the presence of a
threshold issue such as the political question or act of state doctrine. As hypothesized, the
presence of a threshold issue should be negatively related to the likelihood of the courts
ruling in support of civil liberties claims (i.e., judges will be more likely to rule in favor
of federal government interests). The dummy variable National Security Defense controls
for the presence of a speciﬁc national security defense, raised by the federal government.
If the government claims an issue of national security, I hypothesize that the judges will
be more likely to rule in favor of the government. Finally, Criminal Case measures
whether the courts are reviewing criminal petitions related to foreign affairs.25 I
hypothesize that judges will be more likely to rule in favor of foreign policy interests

when resolving criminal appeals.

EMPIRICAL RESULTS

The descriptive statistics presented in Table 2-1 provide preliminary evidence
concerning the relationships between the independent variables and District Court
decisions favoring either foreign policy interests or civil liberties claims. Upon initial

examination it is apparent that judges presiding on the District Courts issue rulings more

 

‘5 Examples include military appeals for criminal convictions, convictions for espionage or treason, drug
related offenses (importation or arrests on the high seas) or convictions for violations of business (i.e.,
violations of the Trading with the Enemy Act).

43

often in favor of foreign affairs than in support of civil liberties. Table 2-1 indicates these

judges render 65.6% of their decisions in favor of the government’s foreign relations

authority and 34.4% in support of individual claims of civil liberties violations.

Table 2-1: District Court Descriptive Statistics

 

 

 

 

 

 

 

 

 

For Foreign For Civil
Policy Interests Liberties Claims
Court Partisanship
Republican 70.7% (53) 29.3% (22)
Democrat 59.5% (75) 40.5% (51)
Per Capita Workload26
One Standard Deviation Below 73.9% (17) 26.1% (6)
Near Mean 62.1% (77) 37.9% (47)
One Standard Deviation Above 69.1% (47) 30.9% (21)
Constitutional Challenge
No 60.6% (66) 39.4% (43)
Yes 70.8% (75) 29.2% (31)
International Law or Treaty
No 60.9% (103) 39.1% (66)
Yes 82.6% (38) 17.4% (8)
Threshold Issue
No 67.7% (111) 32.3% (53)
Yes 58.8% (30) 41.2% (21)
National Security Defense
No 64.3% (119) 35.7% (66)
Yes 73.3% (22) 26.7% (8)
Criminal Case
No 62.4% (103) 37.6% (62)
Yes 76.0% (38) 24.0% (12)
Total (n = 215) 65.6% (141) 34.4% (74)

 

 

 

(number of observations listed in parentheses)

The preliminary results listed in Table 2-1 reveal interesting patterns for some of
the independent variables. First, the data indicate that judges appointed by Democratic

presidents are approximately 10% more likely to rule in favor of civil liberties claims

 

26 Mean = 38.720 and standard deviation = 14.058

44

 

than their Republican colleagues. However, these same judges are also approximately
20% more likely to render a decision supporting foreign policy interests. Second,
increases in per capita workload do not possess an identiﬁable pattern of inﬂuence on
District Court behavior. Third, the presence of a constitutional challenge does not seem to
inﬂuence the likelihood of a civil liberties vote. In fact, District Court judges are more
likely to support foreign policy interests when presented with a constitutional dispute
(70.8%) than they are to rule in favor of civil liberties (29.2%). A similar pattern exists
for the presence of an international law or treaty claim. District Court judges are more
likely to render a decision favoring foreign affairs (82.6%) when interpreting an
international legal provision than they are to support civil liberties (17.4%). Fifth, the
presence of a threshold issue does not seem to inﬂuence District Court judges; they
overwhelmingly vote in favor of foreign policy interests in the cases they adjudicate.
Sixth, when District Court judges are presented with a national security defense, the
likelihood of ruling in favor of foreign policy interests increases ahnost by 50%. Finally,
the data in Table 2-1 indicates district judges are 50% more likely to support foreign
affairs when resolving a criminal dispute.

Table 2-2 provides preliminary evidence concerning behavioral inﬂuences on
judges of the Courts of Appeals. Similar to their District Court brethren, an initial
examination reveals that appellate judges render a majority of their decisions in favor of
foreign policy concerns (62.2%) rather than in support of civil liberties claims (37.8%).
Thus, the data initially demonstrate that the lower federal judges (District and Appeals

Courts) most often defer to governmental authority in foreign relations.

45

Table 2-2: Courts of Appeals Descriptive Statistics

 

 

 

 

 

 

 

 

 

 

For Foreign For Civil
Policy Interests Liberties Claims
Court Partisanship”
One Standard Deviation Below 80.5% (33) 19.5% (8)
Near Mean 58.5% (93) 41.5% (66)
One Standard Deviation Above 56.7% (17) 43.3% (13)
Lower Court Directionality
For Foreign Policy Interests 72.9% (121) 27.1% (45)
Mixed Decision 19.2% (5) 80.8% (21)
For Civil Liberties Claims 44.7% (17) 55.3% (21)
Per Capita Workload28
One Standard Deviation Below 53.6% (15) 46.4%(13)
Near Mean 59.3% (86) 40.7% (59)
One Standard Deviation Above 73.7% (42) 26.3% (15)
Constitutional Challenge
No 58.6% (95) 41.4% (67)
Yes 70.6% (48) 29.4% (20)
International Law or Treaty
No 61.4% (113) 38.6% (71)
Yes 65.2% (30) 34.8% (16)
Threshold Issue
No 59.6% (99) 40.4% (67)
Yes 68.8% (44) 31.2% (20)
National Security Defense
No 61.0% (128) 39.0% (82)
Yes 75.0% (15) 25.0% (5)
Criminal Case
No 56.6% (86) 43.4% (66)
Yes 73.1% (57) 26.9% (21)
Total (n = 230) 62.2% (143) 37.8% (87)

 

 

 

 

(number of observations listed in parentheses)

The descriptive statistics presented in Table 2-2 do not offer many insights into
behavioral inﬂuences on Courts of Appeals judges. Regarding ideological inﬂuences, it is
difﬁcult to determine the extent to which personal partisan proclivities affect appellate

judges. Since panels of j udges review the majority of appeals, an aggregate partisanship

 

2’ Mean = .470 and standard deviation = .310
28 Mean = 41.411 and standard deviation = 18.643

46

score is employed. Table 2-2 shows that the mean partisanship score equals .470,
indicating that Courts of Appeals panels are slightly conservative. When panels are
relatively balanced (i.e., near the partisan mean), the judges rule in favor of foreign policy
interests 58.5% of the time, compared to 41.5% for civil liberties decisions. As panels
become dominated by more Republican judges (one standard deviation below the mean),
the likelihood of a ruling supporting foreign affairs increases to approximately 80%.
However, as panels become controlled by more Democratic judges (one standard
deviation above the mean), the likelihood of a decision favoring civil liberties only
increases by approximately 2%.

The preliminary evidence indicates that the appellate judges are partially
inﬂuenced by the directionality of a lower court decision. When the District Courts or
federal agency rule in favor of foreign policy interests, the Courts of Appeals will afﬁrm
approximately 73% of those decisions (i.e., will also render a decision in favor of foreign
affairs). Similarly, when the lower courts rule in favor of civil liberties, the appellate
judges are 55% likely to afﬁrm the decision and rule in favor of civil liberties. When
District Courts render a mixed decision, the appellate panels overwhelmingly rule in
favor of civil liberties (approximately 80%).

The data represented in Table 2-2 do not reveal an identiﬁable pattern of
inﬂuence for per capita workload. Additionally, the presence of a constitutional challenge
does not seem to affect appellate decision-making. These judges are more likely (70.6%)
to rule in favor of foreign policy interests than civil liberties claims (29.4%) when asked

to adjudicate constitutional questions. In a similar fashion, the presence of provisions

47

from international law or multilateral treaties does not seem to affect the likelihood of
decisions favoring civil liberties.

Conversely, the presence of either a threshold issue, national security defense or
criminal appeal increases the likelihood of the Courts of Appeals rendering decisions in
support of foreign policy interests. When appellate judges encounter threshold issues they
are approximately twice as likely to rule in favor of foreign affairs. When they resolve a
speciﬁc defense of national security, appellate judges are almost three-times as likely to
support governmental foreign relations authority. Finally, if asked to adjudicate criminal
appeals, these judges are almost three-times as likely to render decisions favoring foreign
policy interests.

Descriptive statistics for the Supreme Court are included in Table 2-3. These data
indicate that the High Court is more sensitive to civil liberties claims than the lower
federal courts. The justices rendered 44% of their decisions in support of individual
rights, compared to 34.4% for the District Courts and 37.8% for the Courts of Appeals.
However, while the Supreme Court may be more sensitive to civil liberties claims, the
justices remain deferential to governmental foreign relations authority; ruling in support

of foreign policy interests in 56% of their decisions.

48

Table 2-3: Supreme Court Descriptive Statistics

 

 

 

 

For Foreign For Civil
Policy Interests Liberties Claims
Court Partisanslripfr
One Standard Deviation Below 100.0% (9) 0.0% (0)
Near Mean 60.5% (46) 39.5% (30)
One Standard Deviation Above 32.3% (10) 67.7% (21)
Lower Court Directionality
For Foreign Policy Interests 45.8% (22) 54.2% (26)
Mixed Decision 36.4% (4) 63.6% (7)
For Civil Liberties Claims 68.4% (39) 31.6% (18)
Per Capita Workload”u
One Standard Deviation Below 68.2% (15) 31 .8%(7)
Near Mean 53.7% (36) 46.3% (31)

One Standard Deviation Above

51.9% (14)

48.1% (13)

 

Constitutional Challenge

 

 

 

 

 

 

 

No 63.3% (31) 36.7% (18)

Yes 50.7% (34) 49.3% (33)
International Law or Treaty

No 56.1% (60) 43.9% (47)

Yes 55.6% (5) 44.4% (4)
Threshold Issue

No 56.4% (53) 43.6% (41)

Yes 54.5% (12) 45.5% (10)
National Security Defense

No 56.0% (61) 44.0% (48)

Yes 57.1% (4) 42.9% (3)
Criminal Case

No 57.8% (59) 42.2% (43)

Yes 42.9% (6) 57 .1% (8)

Total (n = 116) 56.0% (65) 44.0% (51)

 

(number of observations listed in parentheses)

 

According to the preliminary evidence in Table 2-3, it is apparent that Supreme
Court justices are highly inﬂuenced by their ideological preferences. The partisan mean
for the Court is .307 indicating a conservative predisposition for the justices. As the Court

becomes more dominated by Republican appointees (i.e., one standard deviation below

 

29 Mean = .307 and standard deviation = .131
3° Mean = 17.519 and standard deviation = 5.762

49

the partisan mean), its decisions exclusively favor foreign policy interests. In contrast, as
the Court becomes dominated by more Democratic appointees (i.e., one standard
deviation above the partisan mean), the likelihood of decisions favoring civil liberties
claims doubles. The remaining data presented in Table 2-3 do not indicate identiﬁable
patterns of inﬂuence for the Supreme Court. Consequently, it seems as if the justices are
motivated solely by their personal ideological preferences to the exclusion of other
inﬂuences.

While the preliminary evidence presented in these three tables offers general
insights into potential behavioral inﬂuences, a more rigorous analysis is needed.
Therefore, to examine systematically the empirical inﬂuences of the independent
variables, I conducted separate probit analyses for the District Courts, Courts of Appeals
and the Supreme Court. The results of these analyses are reported in Table 2-4. Each of
the models performs well, possessing a 34.8, 49.0, and 43.0 percent reduction of error for
the District Courts, Courts of Appeals and Supreme Court, respectively.31 Also, upon
initial examination of these results it is apparent that the federal courts render decisions
more often in favor of foreign policy interests than in support of civil liberties; supporting
the conclusions revealed by the descriptive statistics. The numbers reported in the null
models indicate that District Courts render 34.4% of their decisions in favor of civil
liberties, with the Courts of Appeals ruling 37.8% and the Supreme Court 44.0% of the
time in favor of civil liberties. However, to determine speciﬁc inﬂuences on judicial

behavior one must examination the impact of individual variables.

 

3 l The reduction of error statistic is calculated using the formula provided in Hagle and Mitchell (1992)

 

o ' _ o -
ROE (%) = 100 x A) correctly predicted /o In null category
100% — % in null category

50

Table 2-4: Probit Analysis

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

51

Coefﬁcients
(Robust Standard Errors)
Chan e in Predicted Probabilities
Model 1 Model 2 Model 3
District Courts Appeals Courts Supreme Court
.390* 851*" 4803*“
Court Partisanship (.225) (.299) (1.170)
.070 .103 .237
.484*** -.069
Lower Court Directionality N/A (.125) (.148)
.140 -.023
.001 -.005 .034
Workload (.007) (.005) (.023)
.003 -.028 .069
-.164 -.164 .327
Constitutional Challenge (.212) (.212) (.266)
-.064 -.066 .124
-.179 -.075 .779
International Law/Treaty (.334) (.224) (.499)
-.058 -.027 .287
.031 -.241 .073
Threshold Issue (.247) (.209) (.312)
.008 -.094 .023
-.668** -.658* -.148
National Security Defense (.327) (.371) (.467)
-.238 -.229 -.034
-.528** -.260 .142
Criminal Case (.252) (.202) (.398)
-.195 -.099 .052
Constant -.302 (.374) -.978 (.359) -2.377 (.775)
N 165 215 1 16
Log Likelihood -102.428 -125.260 -66.535
X2 9.200 26.570 26.960
Probability > x2 .239 .001 .001
Pseudo R2 .058 .124 .164
Null Model 34.4% 37.8% 44.0%
% Correctly Predicted 57.2% 68.3% 68.1%
% Reduction of Error 34.8% 49.0% 43.0%
*p<.10 **p<.05 ***p<,01

 

The ﬁrst model examines inﬂuences on the federal District Courts. According to
Table 2—4, the variables Court Partisanship, National Security Defense, and Criminal
Case exert statistically signiﬁcant inﬂuences in the expected direction. I hypothesized
that the ﬁrst variable would be related positively to the likelihood of judges ruling in
favor of civil liberties, while the latter two variables would be negatively related. These
hypotheses are conﬁrmed by the empirical results, although the inﬂuence for Court
Partisanship barely achieves statistical signiﬁcance. Unfortunately, the variables
Workload, Constitutional Challenge, International Law/Treaty, and Threshold Issue do
not signiﬁcantly affect judicial behavior.

To determine the magnitude of impact for the signiﬁcant variables, I calculated
predicted probabilities for each variable according to algorithms developed by Tomz,
Wittenberg and King (2003). Predicted probabilities allow researchers to measure
magnitudes of impact for a single variable, while holding the other variables constant
either at their means for continuous variables or at zero for dichotomous variables.
Evaluating predicted probabilities provides more meaningﬁrl conceptual estimates (King,
Tomz and Wittenberg 2000) than simply reporting probit coefﬁcients. Examining the
predicted probabilities for Court Partisanship therefore reveals that District Court judges
appointed by Democratic presidents are 7% more likely to rule in favor of civil liberties
than their Republican colleagues. If District Court judges encounter a National Security
Defense, however, they are 23.8% more likely to rule in favor of foreign policy interests.
Similarly, if these judges adjudicate a criminal case related to foreign relations, they are

19.5% more likely to support governmental authority in this realm.

52

The second empirical model evaluates the Courts of Appeals. According to the
results listed in Table 2-4, the variables Court Partisanship, Lower Court Directionality,
and National Security Defense exert statistically signiﬁcant inﬂuences (though the
variable National Security Defense barely achieves signiﬁcance). I hypothesized the ﬁrst
two variables would be related positively to the dependent variable while the latter would
possess a negative relationship. These hypotheses are supported empirically, while the
expected inﬂuences of the variables Workload, Constitutional Challenge, International
Law/Treaty, or Threshold Issue do not achieve statistical signiﬁcance. The predicted
probabilities for Court Partisanship indicate that Appeals Court panels dominated by
Democratic judges are 10.3% more likely to rule in favor of civil liberties than are panels
controlled by Republican judges. Additionally, if the District Courts (or federal agency)
initially ruled in favor of civil liberties, the Appeals Courts are 14.0% more likely to
afﬁrm this ruling and render a decision favoring civil liberties. Finally, Table 2-4 reveals
when appellate judges confront a National Security Defense, they are 22.9% more likely
to support foreign policy concerns.

The ﬁnal empirical model examines inﬂuences on the Supreme Court. According
to Table 2-4 only one variable achieves statistical signiﬁcance: Court Partisanship. The
predicted probabilities demonstrate that as more justices appointed by Democratic
presidents assume the Bench, their decisions are 23.7% more likely to support civil
liberties claims than when the High Court is controlled by Republican appointed justices.
The hypotheses for the remaining variables are not supported by the empirical evidence

displayed in Table 2-4.

53

CONCLUSIONS

Are the federal courts defenders of civil liberty or champions of national security?
This chapter employs empirical analyses to assess patterns of individual behavior among
the federal courts, under the assumption that the hierarchical structure of the judiciary
does not exert a signiﬁcant inﬂuence. Based on separate probit models one can
reasonably conclude that federal judges are champions of national security. The lower
federal courts seldom rule in favor of civil liberties claims (34.4% for the District Courts
and 37.8% for the Appeals Courts). The Supreme Court is more sensitive to individual
challenges, supporting these claims in 44.0% of their decisions. However, it is apparent
that the justices more often defer to governmental authority in foreign relations.

While the federal judiciary is prone to support foreign policy interests, it is
important to understand the conditions under which these judges will rule in favor of civil
liberties claims. An important inﬂuence is the ideological preferences of judges. The
empirical results indicate that more liberal judges — as measured by partisan afﬁliations
of the appointing president —— are more likely to render decisions in favor of civil liberties.
This result holds for each level of the federal judiciary, although the results are more
pronounced in the Supreme Court, less so for the Appeals Courts, and the weakest for
District Courts. Hence, the empirical data support an extension of the attitudinal model
into the realm of foreign relations. As Holsti and Rosenau (1986, 1988) discovered for
other elites, attitudes on domestic issues closely correlate to attitudes on foreign issues.

A second important inﬂuence involves the presence of a national security defense.
As the realist paradigm in international relations indicates, the ‘state’ responds to external

threats in a defensive fashion. Applying this theoretical expectation to the federal

54

judiciary, judges will defer to the government if the latter believes a threat to national
security exists. The empirical data suggest that lower court judges are signiﬁcantly
affected by these situations. However, Supreme Court justices do not respond in a similar
fashion. One possible explanation for this difference involves the time between an
incident and judicial review. Since the District Courts and the Appeals Courts often
adjudicate disputes within close temporal proximity to the event, it is possible that they
are extremely sensitive to national security claims. In contrast, the Supreme Court may
not grant certiorari to a dispute until years after the incident occurred. As such, a claim of
national security may not carry the same immediacy or urgency to the justices as it does
to their lower court brethren.

These conclusions are based on the assumption that the institutional structure of
the federal judiciary does not exert a signiﬁcant inﬂuence on the behavior of individual
judges. As I mentioned at the beginning of this chapter, that assumption may not be
tenable. Previous research indicates that institutional structures affect both compliance
rates for lower court judges (Gruhl 1980; Johnson 1987; Songer and Sheehan 1990), and
their behavioral patterns (Batun 1980; Songer 1987). However, questions remain as to
whether the institutional structure of the federal judiciary inﬂuences anticipatory behavior
of the judges (Caminker 1994; Klein 2002). Stated another way, do lower court judges
anticipate the actions of their superiors when adjudicating disputes? Will District Court
judges condition their decision-making on expected reactions by Courts of Appeals
judges? Similar, do the appellate judges estimate how the Supreme Court justices will

react to a particular decision? Chapters Three and Four conduct empirical analyses of

55

anticipatory behavior — through the utilization of strategic choice probit models — to

resolve these questions.

56

CHAPTER THREE: THE HIERARCHY OF JUSTICE
AND THE COURTS OF APPEALS

To the extent law is the primary deciding factor in cases, we have a familiar hierarchical
legal system. But to the extent lower courts are trying to guess the preferences of higher
courts, and higher courts are reviewing based on ideology and outcome, then law is not

the chief determinant of outcomes; rather it is ideology and reversal rates. 32

In Chapter One, I mentioned that an important institutional feature of the federal
judiciary is its hierarchical structure. Cases initially appear in the District Courts for trial,
are then appealed to the Circuit Courts of Appeals for review and, in rare instances, are
reviewed by the Supreme Court. Due to this vertical structure and to the legal concept of
stare decisis, decisions rendered by higher tribunals are considered binding precedent by
lower courts. Thus, as Burbank and Friedman (2002) note above, to the extent that the
principle of stare decisis holds (i.e., to the extent law is the primary deciding factor), we
have a familiar hierarchical system. However, the attitudinal model posits (and
subsequent empirical studies demonstrate) that judges render decisions according to their
personal preferences (Segal and Spaeth 1993, 2002). Rather than reliance on the law or
principles of stare decisis, the predominant inﬂuence of judicial outcomes becomes
individual ideological concerns. Does this reliance on ideology mean lower court judges
try to guess the preferences of judges on higher courts, as Burbank and Friedman hint? If

so, how does this impact the familiar hierarchical legal system?

 

’2 Burbank and Friedman (2002, 31).

57

Unfortunately, few empirical analyses concentrate on answering these important
questions. This chapter focuses on the impact of the hierarchical judicial structure in the
reahn of foreign policy litigation. Speciﬁcally, I examine the relationship between judges
on the appellate judiciary. Do judges on the Courts of Appeals guess the preferences of
Supreme Court justices when rendering decisions in foreign affairs? Additionally, does
this anticipatory behavior signiﬁcantly impact or constrain the ability of these judges to
maximize their personal policy preferences? To address these questions, I ﬁrst brieﬂy
discuss the history of the federal judiciary’s institutional structure (with an emphasis to
the development of the Courts of Appeals). Then I examine theories of judicial
compliance and hierarchical relationships — focusing especially on principal-agent theory
—— and derive a formal game to illustrate expected patterns of behavior. Finally, I
empirically test the inﬂuence of hierarchical constraints using a relatively recent set of

statistical models on strategic choice.

HISTORICAL DEVELOPMENT OF THE FEDERAL JUDICIARY

The establishment of the United States government, under the Articles of
Confederation, did not coincide with the establishment of an identiﬁable judicial branch.
Virtually all governmental functions were handled by a single-chamber legislature. As
the Founding Fathers gathered to replace the Articles of Confederation, the debate over
the necessity of a separate judicial entity fostered disagreement. Two proposals were
offered pertaining to a judicial branch. The ﬁrst, commonly referred to as the Virginia
Plan, called for the establishment of a single supreme court and a number of inferior

federal courts. Opponents to this plan, concerned over a potentially powerful and

58

centralized judiciary, presented the New Jersey Plan. This proposal would have created a
single supreme court with the jurisdiction to hear appeals ﬁom state courts — where all
trials would commence (Carp and Stidham 2001, 25). Similar to other aspects in the
development of the US. Constitution, a compromise occurred among the delegates,
which led to the drafting of Article ID: “The Judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may from time
to time ordain and establish.”

When the Constitution was ratiﬁed, Congress immediately worked to establish the
initial judicial structure of the federal government. With the passage of the Judiciary Act
in 1789, Congress created a three-tiered judicial structure. The Supreme Court consisted
of a Chief Justice and ﬁve associate justices. Three circuit courts were established, each
staffed by a district court judge and two Supreme Court justices. Finally, thirteen district
courts were created, one for each ratifying state (plus a court each for Maine and
Kentucky). In addition to creating a formal judicial structure, the Act established the
jurisdictional relationships among the three tiers. The district courts served as minor trial
courts and the circuit courts presided over more important civil and criminal trials, as
well as handling diversity disputes (between citizens of two different states). The
Supreme Court possessed original jurisdiction in a limited number of areas, and appellate
jurisdiction from the circuit courts, district courts and state courts (Murphy, Pritchett and
Epstein 2002).

As the United States developed throughout the Nineteenth century the inadequacy
of this initial system became readily apparent. In 1891, Congress passed the Evarts Act,

which created the circuit courts of appeals. These new courts were responsible for

59

reviewing most of the appeals from the federal district courts. Ironically though, the
Evarts Act did not abolish the old circuit courts. Consequently, for the next twenty years
the federal judicial system included four tiers, two of which were trial tribunals: district
courts and circuit courts; and two of which possessed appellate jurisdiction: circuit courts
of appeals and the Supreme Court. In 1911, Congress passed additional legislation
dissolving the old circuit courts and in 1948, the remaining intermediate appellate
tribunals ofﬁcially became known as the Courts of Appeals. The modern appeals courts
are organized in eleven circuits, each possessing jurisdiction over a speciﬁc geographic
region. A twelfth circuit reviews cases from Washington, DC (including many federal
agencies) and a thirteenth circuit — the Federal Circuit created in 1982 — possesses
speciﬁc subj ect-matter jurisdiction.33
Since its inception in 1891, the US. Courts of Appeals has occupied a “pivotal
position as the vital center of the federal judicial system”(Howard 1977). Songer (1991)
states, “as the number of litigated cases grows both quantitatively and in complexity,
while the ntunber of cases reviewed by the Supreme Court remains static, the role of the
courts of appeals as the ﬁnal authoritative policymaker in the interpretation of many areas
of federal law expands apace.” According to the Administrative Ofﬁce of the US.
Courts, the annual caseload of the appeals courts has increased substantially each year
with the total number of cases reviewed in 1990 reaching approximately 38,000 (Songer,
Sheehan and Haire 2000, 15-16). Therefore, for a large majority of cases, the US. Courts

of Appeals serve as the court of last resort, since “fewer than one-half of 1% of appeals

courts decisions are reviewed by the Supreme Court” (Songer 1991). Consequently, this

 

33 The Federal Circuit was created through consolidation of the Court of Claims and the Court of Customs
and Patent Appeals.

60

pivotal position provides the appeals courts with several opportunities to review
questions pertaining to the structure, authority, and conduct of the federal government.
However, the Supreme Court remains the highest judicial authority within the United
States and may exercise its appellate jurisdiction whenever it believes a grant of
certiorari is necessary — either to review a decision from the Courts of Appeals or
another lower court. Does this potential exercise of appellate jurisdiction by the Supreme
Court serve as a signiﬁcant constraint to the Appeals Courts? To address this question, I

turn to an examination of the theoretical expectations inherent in structural hierarchies.

THEORIES OF JUDICIAL COMPLIANCE AND STRUCTURAL HIERARCHIES

The institutional structure of the federal judiciary facilitates an application of the
legal concept of stare decisis. Under this principal, courts located in the lower echelons
of the hierarchy apply binding precedents — handed down by higher tribunals - to resolve
current disputes. As Canon and Johnson (1999, 30) state, “all courts lower in the
hierarchy must attempt to apply the policy to relevant cases, interpreting the policy as
necessary to ﬁt the circumstances at hand.” Several scholars have examined lower court
treatment of legal precedents and concluded that inferior judges generally adhere to
Supreme Court pronouncements of law (Gruhl 1980; Johnson 1987; Songer and Sheehan
1990; Benesh and Reddick 2002). Additionally, lower court judges tend to follow
ideological trends from these higher tribunals (Baum 1980; Songer 1987). According to
Baum, the reason for compliance by lower court judges is that while those judges seek to
set doctrine near their personal ideal points, they realize that doing so increases the

chance of being reversed by a higher court. Therefore, judges “must balance their

61

preferences against the preferences of [the higher] court and sometimes take positions
that diverge from their own preferences in order to avoid reversals that would move
policy even further from those preferences” (1997, 115).

In order to understand the inﬂuence of this hierarchical relationship, scholars have
turned to principal-agent theory. The fundamental prerrrise behind this theoretical
construct (see Brehm and Gates 1997 for a more detailed explanation) is that the principal
seeks to produce results according to his personal preferences. However, due to a lack of
resources the principal cannot review every aspect of a particular policy arena. Therefore,
the principal “delegates some rights... to an agent who is bound by a (formal or informal)
contract to represent the principal’s interests...” (Eggertsson 1990, 40). The tension
within this relationship arises because the agent also seeks to produce results according to
his personal preferences, which may not be similar to those of the principal. The
difﬁculty for the principal involves establishing substantial controls, inducements or
other enforcement mechanisms to ensure that the agent does not deviate from the
principal’s preferences (Shepsle and Bonchek 1997). Yet, because a principal cannot
develop perfect enforcement mechanisms and due to information asymmetries between
the principal and the agent, it is always possible for the agent to “Shir .”

Consequently, principals are required to monitor the agent to determine whether
the latter is being faithﬁrl to the forrner’s preferences. Since principals possess limited
resources (a reason for entering the principal-agent relationship) they must make choices
about which aspects will be examined. “A moral hazard, according to the principal-agent
literature, arises when the principal measures compliance by a single proxy or indicator,

thereby lessening [his] effort in monitoring” (Benesh 2002, 8). Reliance on this single

62

proxy, however, may allow potential shirking to exist in other areas not measured by the
indicator. Conversely, principals can rely on adverse selection mechanisms to ensure
compliance. This occurs when the principal hires an agent based on a single identiﬁable
trait or characteristic which the principal believes ensures that the agent’s preferences
match his own. However, by relying on a single indicator during the hiring phase,
principals may ignore other signals, which better correlate to expected behavior.

Empirical examinations of the principal-agent model, within the judiciary,
traditionally focused on the impact of Supreme Court decisions on lower courts.34
Songer, Segal and Cameron (1994) were among the ﬁrst scholars to rely on this theory to
examine the degree of congruence and responsiveness between the Supreme Court and
the Courts of Appeals. Using data on search and seizure cases, in which they isolate
speciﬁc case facts, the authors demonstrate convincingly that “judges on the courts of
appeals appear to be relatively faithful agents of their principal, the Supreme Court”
(1994, 690). One of the primary components of this faithfulness involves the increased
probability of losing litigants appealing a decision which deviates from the preferences of
Supreme Court justices. However, they do note a substantial difference between liberal
and conservative judges (panels) at the appellate court level. “These ﬁndings suggest that
appeals court judges are substantially constrained by the preferences of their principal,
but the complexity and tremendous variety of the fact situations presented on appeal
frequently provide them with room to maneuver” (1994, 692-693).

Following this signiﬁcant analysis, other scholars have employed principal

agency theory to model relationships between the Supreme Court and lower courts. For

 

3’ One must remember that the judicial hierarchy is not equivalent to other bureaucratic organizations, since
the Supreme Court does not possess authority over traditional sanctioning mechanisms, such as
appointment, removal, promotion or salary for inferior judges (Fiss 1983).

63

example, Benesh (2002) concentrates her analysis on the relationship between the
Supreme Court and the Courts of Appeals. Relying on an original dataset of confession
cases, she discovers that appellate judges comply with Supreme Court pronouncements
because of the moral authority exerted by the High Court (2002, 129). Extending this
research framework to state supreme courts, Martinek (2000) discovers evidence
demonstrating the relevance of the principal-agent model in search and seizure cases; and
Benesh and Martinek (2002) provide evidence of its usefulness in state supreme court
confession cases. Thus, it is becoming readily apparent that principal agency theory is a
useful device for examining the impact of Supreme Court decisions on lower court
behavior.

However, because these models focus on whether lower courts are signiﬁcantly
affected by previous Court doctrine, controlling for various case facts, they do not
account for new areas of the law where the doctrine is not clear. Thus, these ﬁndings are
“entirely consistent with the possibility that lower court judges adhere faithfully to higher
court precedents — and so appear responsive in the bulk of their cases — but ignore their
superiors entirely when deciding new questions” (Klein 2002, 7). When new questions of
law arise, how do the tenets of principal agency theory apply? The previous empirical
evaluations of the principal-agent model hint at a form of anticipatory behavior, though
this is never directly tested. As Songer, Segal and Cameron claim, “if an appeals court
anticipates that it will be sanctioned in the form of a reversal, the anticipated response
will keep the court in check” (1994, 693). However, since they do not directly test this
claim empirically, the statement is merely speculative and implicitly suggests that lower

court judges anticipate possible responses from their superiors. In situations where a

64

negative response is likely (i.e., fear of reversal), judges alter their behavior accordingly.
To determine the logic behind this fear of reversal and possible anticipatory behavior I

develop a formal model.

FORMAL MODEL OF APPEALS COURT DECISION MAKING

Reliance on formal modeling for judicial behavior has increased over recent
years. Scholars use formal models to help explain voting behavior in the US. Supreme
Court (Steams 2000), interactions between the Supreme Court and other branches of
government (Segal 1997; Shipan 1997; Vanberg 2001) and between the Supreme Court
and lower courts (McNollgast 1995; Cameron, Segal and Songer 2000). “The principal
advantage of formal modeling is the clarity and rigor afforded through deductive
analysis. For game theoretic analysis this means identifying equilibrium conditions not
predicting speciﬁc outcomes of a particular case” (Gates and Humes 1997, 7). Thus, one
may explicitly state precise assumptions about expected behavior and mathematically
derive general patterns of behavior (i.e., best responses) of individuals within a strategic
environment. Following in this tradition, I present a formal model that helps explain why
judges on the Courts of Appeals may feel constrained by the actions of the Supreme

Court.”

 

35 Note that this model is a simpliﬁcation of reality and therefore focuses on a narrow set of potential
inﬂuences on judicial behavior.

65

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Immediately, one can see in Figure 3-1 the sequential nature of the federal
appellate process. Decisions on foreign policy issues (or any other issue) are ﬁrst
reviewed by the Courts of Appeals.36 The judges on the appellate panel can choose
between ruling in favor of civil liberties (denoted B for this game) or they can support
foreign policy interests (denoted ~B). Once the Courts of Appeals rule on a case, the
Supreme Court can decide whether to grant certiorari (C) or deny review (~C).37 If the
Supreme Court denies certiorari (or if no appeal emerges after the appellate panel
decision), the game ends. However, if the Court grants certiorari, then the justices can
vote on the merits, either for civil liberties (B) or foreign policy interests (~B).38

In order to derive equilibrium behavior, one must specify assumptions about
payoffs for the players. These payoffs assist in calculating the expected utilities, which
are necessary to determine the speciﬁc strategies players adopt. As Figure 3-1 illustrates,
judges on the Courts of Appeals are motivated by two primary concerns. The ﬁrst
involves the policy outcome of a decision. For illustration purposes, let us assume that the
Courts of Appeals prefer to rule in favor of civil liberties and the Supreme Court prefers a

ruling supporting foreign policy interests.39 Since the Courts of Appeals are actors within

 

3" In reality, decisions are ﬁrst adjudicated in the federal district courts. Chapter Four therefore models this
phenomenon directly.

7 The author acknowledges that a losing litigant must ﬁrst appeal the decision to the Supreme Court and
petition for a writ of certiorari (i.e., the Supreme Court does not automatically review decisions from the
Courts of Appeals). As Songer, Cameron, and Segal (1995) demonstrate, rational litigants will petition for
certiorari if they believe the appellate panel rendered a decision beyond the preferences of Supreme Court
justices. However, for the purposes of this model a non-appeal to the Supreme Court is treated the same as
a denial of certiorari. This assumption is tenable since, in both cases, the legal policy is drafted by the
Courts of Appeals and application of precedent only extends to the geographic boundaries of the speciﬁc
Circuit.

38 Though the model includes only two choices for both levels of the judiciary, in reality judges possess a

range of policy options beyond these choices.

’9 Opposite patterns of behavior will occur if one assumes the Appeals Courts favor foreign policy and the
Supreme Court favors civil liberties. If the Appeals Courts prefer similar policy outcomes as the Supreme
Court, then these judges will rule according to their preferences without fear of reversal (regardless of the

ideological direction of those preferences).

67

the federal judicial system, the judges receive a policy beneﬁt X1 for each decision they
render. I assume that the judges are policy maximizers, and as such prefer to render
decisions according to their personal ideological preferences (this is the standard
assumption for the attitudinal model)"0 Therefore, if the Appeals Courts prefer decisions
favoring civil liberties, they receive a positive X; for each decision reﬂecting this
preference and a negative X1 for decisions favoring foreign policy.41 However, these
judges realize that the Supreme Court can review their decisions and either afﬁrm or
reverse their rulings. If the Court decides to review a decision, the Courts of Appeals
judges are subjected to a reputation effect Y. If the decision is afﬁrmed by the Supreme
Court, then this reputation effect is added to the policy beneﬁt (because the policy is
extending to the entire country rather than remaining only within a particular circuit).
However, if the Supreme Court reverses the decision, then the reputation effect is
subtracted from the policy beneﬁt (because the Supreme Court will extend an opposite
policy to the entire nation). Finally, I make an explicit assumption about the preference
ordering of Courts of Appeals judges. Initially I assume these judges prefer to rule
according to their attitudinal preferences. Following the illustrative example, they prefer
to rule in favor of civil liberties. Therefore, the appellate judges most prefer to rule in
favor of civil liberties and have these decisions afﬁrmed by the Supreme Court (thereby
extending the policy beyond their circuit to the entire nation), followed by preferring to

rule in favor of civil liberties with the Supreme Court not reviewing the decisions (thus,

 

‘0 Baum (1997) notes other motivational factors beyond ideological preferences. These include adherence
to precedent, desires to avoid reversal by the circuit en banc, avoidance of informal sanctions from peers,
and constraints from other political elites. This model, by focusing primarily on attitudinal concerns, is
therefore an oversirnpliﬁcation of potential inﬂuences.

’1 It is important to note that this term X, applies only to the decision by the Appeals Courts. Though the
ultimate policy decision may favor foreign policy interests, X. will remain positive if the Appeals Courts
voted in favor of civil liberties (though the reputation effect Y will be subtracted from this term (X1 - Y)
consequently producing a smaller payoff).

68

(X1 + Y) > (X1)). If the Appeals Courts face a choice between ruling according to their
preferences and being overturned by the Supreme Court or ruling against their
preferences but having the Supreme Court refrain from review, I assume the judges will
prefer the latter to the former because the policy beneﬁt will extend only within their
circuit rather than the entire country (thus, (-X1) > (-X1 — Y)). If the Supreme Court
grants certiorari to review an appellate decision favoring foreign policy, then I assume
the judges prefer to have the decision overturned (although this brings a negative
reputation effect to the Appeals Courts, it essentially extends their most preferred policy
outcome to the nation). The least preferred alternative for the Courts of Appeals is to rule
against their ideological preferences and have the Supreme Court afﬁrm this decision,
thereby extending the policy to the country (thus, (X1 -— Y) > (-X1 + Y)). Comparing these
various payoffs together reveals that Appeals Court judges prefer the following: (Xi + Y)
> (XI) > ('Xl) > ('Xl - Y) > (”xi + Y)~

Figure 3-1 also reveals the payoffs for the Supreme Court. First, I assume the
justices are motivated by policy concerns, similar to the appellate judges. In this case,
according to the illustrative example, the Supreme Court receives a policy beneﬁt X2 for
decisions favoring foreign policy interests and a beneﬁt —X2 for decisions supporting civil
liberties. Again, I assume that the justices are policy maximizers and, therefore, prefer to
render decisions according to their ideological preferences. Second, in relation to this
policy beneﬁt is the notion that the Supreme Court cannot review all appellate decisions
(for the reasons stated later). Therefore, the justices possess an incentive to hear those

cases in which the Appeals Courts ruled against their most preferred outcome."2 This

 

’2 Alternative conceptualizations to this incentive include resolving potential legal conﬂicts according to
the justices preferences or demonstrating the power of the Supreme Court to inferior judges.

69

additional attitudinal incentive W is added to the policy beneﬁt X2 if the Supreme Court
reverses an appellate decision. Third, in order for the Supreme Court to review a decision
it must grant certiorari. Doing so causes the Court to incur a monitoring cost Z (where Z
> 0) since it simply cannot hear many appeals. This cost is subtracted from the policy
beneﬁt for each decision reviewed on the merits by the Supreme Court. Therefore, if the
Supreme Court is going to incur the cost of granting certiorari it will most likely do so to
reverse an appellate decision favoring civil liberties. Conversely, the Supreme Court will
rarely grant certiorari to afﬁrm an appellate decision; it will do so only if the Appeals
Courts rule in favor of foreign policy interests and if the policy beneﬁt from issuing its
own decision outweighs the signiﬁcant cost of granting review (i.e., X2 > Z). Third, if the
Court denies certiorari (or if the losing litigant does not appeal) then the justices receive
a 0 payoff since they do not enjoy the beneﬁt of rendering a decision, nor incur the costs
of granting certiorari.“ Finally, I make an explicit assumption about the preference
ordering for the Supreme Court. I assume the justices most prefer to grant certiorari in
order to rule in favor of foreign policy interests (thereby reversing a decision favoring
civil liberties), and are indifferent (or possibly possess a weak preference) towards
denying certiorari and granting review in order to afﬁrm, and least prefer to rule against
their ideological preferences (thus, (X2 + W — Z) > 0 2 (X2 — Z) > (-X2 — Z)).

To determine the expected utility of the Appeals Courts, let me restate the
assumptions of the formal model in mathematical notation.
Deﬁnition of Player Choices:

Let p(B) = probability of decision favoring civil liberties

 

’3 The zero payoff occurs regardless Of the ideological direction of the appellate decision since the Supreme
Court does not explicitly render its own decision.

70

Let p(C) = probability of an appeal to Supreme Court and grant of certiorari
Deﬁnition of Player Payoffs:

Let Xi = Courts of Appeals Beneﬁt for civil liberties decision

Let Y = Courts of Appeals Reputation Effect

Let X2 = Supreme Court Beneﬁt for foreign policy decision

Let W = Supreme Court attitudinal incentive

Let Z = Supreme Court Cost of Review

Under a game of complete information, and using backwards induction, the expected
utility of the Courts of Appeals choosing to vote in favor of civil liberties is conditioned
on potential responses from the Supreme Court (i.e., conditioned on whether the Supreme
Court grants certiorari). Thus, we initially examine the Appeals Courts expected utilities
under the assumption that the Supreme Court grants certiorari,

EUAppeals (BIC) = PRSupreme (BIC) + PRSurareme (~BIC) [1]
Equation [1] stipulates that the expected utility for the Appeals Courts of choosing to
support civil liberties is ﬁrst calculated under the assumption that the Supreme Court will
grant certiorari, and then the utility depends on the probability of the Supreme Court
choosing to support civil liberties. If these conditions hold then,

EUAppeaIs (BIC) = P(Xl + Y) + (1 - p) (-Xi - Y) [2]
Equation [2] is a function of choices made by the Supreme Court (assuming a grant of

certiorari) and the subsequent payoffs afforded to the Appeals Courts.44 Determining

 

“ Determining a grant certiorari involves an assumption that the policy beneﬁt derived from a ruling on
the merits outweighs the cost incur by review. As shown in the model it is more likely that this beneﬁt will
be larger than the cost of granting certiorari when the Supreme Court reverses an appeal (thus X2 + W)
than when the justices wish to afﬁrm an appeal (X2).

71

whether the Supreme Court will rule in favor of civil liberties involves examining its
respected payoffs between this vote, and a decision supporting foreign policy interests.
Figure 3-1 indicates that the Supreme Court receives (-X2 — Z) if it afﬁrms the Appeals
Courts’ decision in favor of civil liberties. However, if the Supreme Court reverses the
lower decision then it receives (X2 + W — Z) as a payoff. Since the components X2, Z,
and W are positive, by deﬁnition, the Supreme Court possesses a dominant strategy to
reverse civil liberties decisions after a grant of certiorari — as shown in Equation [3],
(X2 + W - Z) > ('Xz — Z) [3]
Consequently, the Supreme Court will choose to support foreign policy interests (~B) if it
grants certiorari to a case in which the Appeals Court ruled in favor of civil liberties.45
Thus, if the Supreme Court reviews the merits of an appeal the probability of the justices

choosing ~B equals 1.00. Substituting this dominant strategy into Equation [2] we see

that,

EUAppeais (BIC) = p(X1 + Y) + (1 — p) (-X1 — Y) where p = 0 [4]
Therefore,

EUAppeals (BIC) = ('XI - Y) [5]

Comparing this expected utility to the utility for the Courts of Appeals given the Supreme
Court denying certiorari (i.e., the Supreme Court chooses ~C), we see:

EUAPPcals (BIC) >< EUAppeaIs (BI~C) [6]

(-X1 - Y) < X1 [7]
Equation [7] indicates that the Courts of Appeals derive a higher utility if the Supreme

Court denies certiorari. This is due to the fact that a grant of certiorari leads to a

 

’5 It goes without saying that this model is an oversimpliﬁcation of reality, since the Supreme Court does
affirm a small number of cases after granting certiorari.

72

dominant strategy of the Supreme Court reversing the appellate panel’s decision.
Therefore, by logical extension, if the Appeals Courts believe the Supreme Court may
grant certiorari — with the intention of reversing a decision - the judges may rule against
their most preferred outcomes."6 This formal model reveals expected patterns of
behavior, under the theoretical assumptions of the principal-agent model. It suggests that
Appeals Court judges, if they behave rationally, will employ forward-thinking techniques
to anticipate possible Supreme Court reactions to their decisions. That is, if the appellate
judges believe the Supreme Court will grant certiorari to reverse their decision, the
judges will consequently render a more strategic ruling to avoid the stigrnatization of
reversal, ceteris paribus.

Though the formal model — and elements of principal agency theory — offers this
prediction few scholars have addressed whether lower court judges engage in anticipatory
behavior. Those that have, provide mixed evidence as to whether this behavior is
employed in a systematic manner. For example, Klein (2002) interviews several appellate
judges and offers some anecdotal support for this notion. Two judges, in particular offer
the following comments:

One thing I have done that’s very useful: If I have a real gray-area case, I

go to history — look at the Supreme Court cases ﬁ'om the beginning. I

watch the issue develop and try to decide what the Supreme Court would

do in this case.

Of course, we’re bound by the Supreme Court, but sometimes there’s a

question of whether to adhere rigidly to the Supreme Court case or ﬁnd

elbow room to go, not contrary to what the Supreme Court has said, but in

a way the Court might disagree with if it heard the same case. [Kleinz Do

you feel you should try to anticipate what the Supreme Court would do?] I
like to try. Not all judges think that’s proper (2002, 108).

 

‘6 This conclusion depends heavily upon the values of each payoff variable (especially for the cost of
granting certiorari).

73

 

The comments ﬁ'om these two appellate judges indicate that they do anticipate how the
Supreme Court would decide a case currently under adjudication. However, Klein’s
empirical analysis of anticipatory behavior discovers, “little evidence that anticipatory
decision making occurs and essentially no evidence that it results from fear of reversal”
(2002, 126). In contrast, Caminker’s doctrinal analysis indicates that lower court judges
embrace anticipatory behavior (what he terms the ‘proxy model’) in two speciﬁc
instances: when they believe an older Supreme Court precedent is so eroded that the
Court will overrule itself if an opportunity arose; and, when discerning state law (1994,
1 9-22).

It is difﬁcult to assess the conclusions of these analyses because neither one
directly tested strategic behavior of Appeals Court judges. Caminker’s qualitative
analysis leads to the conclusion that anticipatory behavior is fairly common among lower
court judges, but he does not provide a systematic analysis of this phenomenon. Klein’s
empirical evidence is more compelling — though it contradicts some of his anecdotal
evidence. Yet, he acknowledges “the results should not be taken as conclusive” (2002,
126). His analysis, while offering valuable insights into the question of anticipatory
behavior, does not explicitly model strategic interaction among the Appeals Courts and
the Supreme Court. If the formal model depicted in Figure 3-1 provides any analytic
leverage, it indicates that the proper form for evaluation is a strategic empirical model.
Until recently, these models were too computationally intensive and complicated to use
efﬁciently. However, the advent of certain methodological developments within the ﬁeld

of international relations — combined with increases in computational power — has

74

generated a set of models which can assist in speciﬁcally determining whether lower

court judges strategically anticipate responses from their colleagues on superior tribunals.

TESTING THE FORMAL MODEL

Empirically testing formal models is an extremely useful endeavor. It allows
researchers to explicitly formulate theoretical predictions — in a simplistic manner — and,
subsequently, examine how these predictions hold when applied to real-world data.
However, in order to generate empirical tests, researchers must remain cognizant of the
differences between formal models and the real world. As such, accurate tests of the
formal model may require relaxing certain assumptions upon which the models rests. One
such assumption involves the deterministic nature of prediction within formal theory.
Rather than assmning the formal model is an accurate representation of a complete data
generating process (DGP), Morton (1999, 129) recommends treating the model as a
reﬂection of a partial DGP, thereby allowing the inclusion of a “random error term that is
not part of the model, some additional restrictions implied by the estimation procedure,
and some other unstructured hypothesis that are also unrelated to the formal model.”

The inclusion of a random error component to a formal model modiﬁes the point
prediction aspect of the traditional Nash equilibrium concept. Instead, the players are
assumed to operate under Quanta] Response Equilibrium, where “best response functions
become probabilistic (at least from the point of view of an outside observer) rather than
deterministic. Better responses are more likely to be observed than worse responses”
(McKelvey and Palfrey 1995, 1996). Thus, players’ actions, over a series of repeated

games, are calculated on average. Over time, the players are more likely to choose better

75

strategies than worse strategies, but they do not always play the best strategy with
probability one (McKelvey and Palfrey 1998). Though the formal model may be
represented in terms of complete information, Quantal Response Equilibrium allows for
players to possess limited amounts of private information, which introduces variation in
the probability of Player 1 choosing strategy A. For the purposes of the formal model
depicted in Figure 3-1, judges on the Courts of Appeals possess information pertaining to
the costs incurred for the Supreme Court to grant certiorari (i.e., the costs are high
enough to limit the number of cases reviewed by the Court). Additionally, the appellate
judges may possess information pertaining to the Supreme Court’s beneﬁt for ruling on
an issue (i.e., conservative justices will prefer to rule in favor of foreign policy interests),
and its desire to reverse lower court rulings. However, the Supreme Court justices retain
some private information about each of these components. Likewise, the appellate judges
will possess private information regarding their policy preferences and their fear of
reversal. This private information allows for variation within the formal model’s
predicted responses, thereby facilitating empirical tests of these theoretical expectations.

With the inclusion of random variation, resulting from actors’ private information,
one can design a statistical model to evaluate empirically the impact of various
exogenous and endogenous factors on the probability of predicted outcomes. However, it
is essential that researchers employ correct statistical speciﬁcations when analyzing
formal models, especially when the theory indicates the importance of strategic
interdependence among the actors (as principal agency theory indicates). As Si gnorino
observes:

[I]f game theory has taught us anything, it is that the likely outcome of
such situations can be greatly affected by the sequence of players’ moves,

76

 

the choices and information available to them, and the incentives they

face. In short, in strategic interaction, structure matters. Because of this

emphasis on causal explanation and strategic interaction, we would expect

that the statistical methods used to analyze [judicial] theories also account

for the structure of the strategic interdependence. Such is not the case

(1999,279)
Unfortunately, previous empirical analyses of principal-agent models in the judiciary do
not account for strategic interdependence among the actors. Instead, the authors utilize
traditional maximum likelihood techniques (such as logit and probit models) to examine
inﬂuences on a single actor. For example, Songer, Segal and Cameron (1994) rely on a
series of logit models to determine inﬂuences on appellate judges at various stages (i.e.,
corresponding to the decision nodes illustrated in Figure 3-1). Subsequent analyses by
other scholars follow a similar methodology to address their various theoretical questions
(Martinek 2000; Benesh 2002; Benesh and Martinek 2002; and Klein 2002). While I do
not seek to criticize these previous analyses — especially since the initial examination
employed a unique theoretical and methodological design for its time — recent advances
in statistical methods offer more efﬁcient techniques that are capable of modeling
strategic interdependence.

In a series of working papers and published articles, Signorino (1999a, 1999b,
2000, 2001; and Signorino and Yilmaz 2000) argues the merits of incorporating strategic
discrete choice models into analyses of interdependence. Traditional maximum likelihood
techniques are limited to a single actor confronted with a single discrete choice (often
binary). Relying on logit or probit models to estimate strategic formal models ignores two

essential structural components: multiple (often sequential) decisions and multiple actors.

Therefore, “logit and probit [models] induce a distributional misspeciﬁcation. Even when

77

that is negligible, the estimates of the effects of regressors — especially for the
conditioning variables — are likely to be biased and inconsistent” (Signorino and Yihnaz
2000, 3-4). The consequences of this distributional misspeciﬁcation are similar to omitted
variable bias, which affect the estimates and leads to inaccurate conclusions.

To alleviate part of the functional form speciﬁcation issue, scholars have turned to
selection models. These models allow researchers to capture the sequential decision-
making process in their empirical estimations, thereby eliminating one source of bias
introduced in the traditional maximum likelihood models (Heckrnan 1979). Essentially,
strategic models are selection models “because the actors select themselves and others
into ‘subsamples’ based on their choices” (Signorino 2001, 3). However, whereas
traditional selection models are useful at modeling sequential decisions, strategic choice
models extend the analysis by also allowing for the incorporation of multiple actors
within a sequential decision calculus.“

The theoretical foundations for strategic choice models utilize outcome
predictions from formal models (with an appropriate random error component, given in
the Quantal Response Equilibrium) to calculate players’ expected utilities. Computing
this calculation, however, requires a slight respeciﬁcation of those expected utilities. This

is illustrated in Figure 3.2.48

 

’7 Signorino acknowledges that strategic choice models are deﬁcient relative to traditional selection models
in the assumption that errors or private information are independent. The strategic choice model does not
capture correlation in the disturbances associated with each player’s decision. “Substantively, this implies
that [players] learn nothing about each other’s incentives when viewing their own private information”
(2001, 14).

’8 This respeciﬁcation of expected utilities illustrates the precise mathematical equations which are
estimated by the strategic choice probit model.

78

 
   
 

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The decision sequence depicted in Figure 3-2 is identical to the sequence
discussed in Figure 3-1. The difference lies in replacing the notation for actions and

payoffs and including notations denoting the probabilities of a player selecting a

particular action.

79

Y6

Y5

Y4

53’

Therefore, the following deﬁnitions apply to Figure 3-2:

Deﬁnition of Player Choices:
Let a1 = Courts of Appeals (C) choosing to decide in favor of civil liberties
Let a2 = C choosing to support foreign policy interests
Let a; = Supreme Court (S) choosing to grant certiorari
Let a; = S choosing to deny certiorari (or case not appealed)
Let a5 = S choosing to deny certiorari (or case not appealed)
Let a6 = S choosing to grant certiorari
Let a7 = S choosing to decide in favor of civil liberties
Let a3 = S choosing to support foreign policy interests
Let a9 = S choosing to decide in favor of civil liberties

Let aio = S choosing to support foreign policy interests

Deﬁnition of Player Outcomes (and Payoffs):
Y1 = C receives X1 and S receives 0
Y2 = C receives -X1 and S receives 0
Y3 = C receives (X1 + Y) and S receives (-X2 — Z)
Y4 = C receives (Xi — Y) and S receives (X2 + W — Z)
Y5 = C receives (-X1 — Y) and S receives (-X2 + W —— Z)

Y6 = C receives (—X1 + Y) and S receives (X2 — Z)

It is important to note that choices a, a7, and a9 correspond to a player choosing B (in

Figure 3-1), a2, a3, and am correspond to a player choosing ~B (in Figure 3-1), choices a3

80

and a6 correspond to choosing C (in Figure 3-1) and, ﬁnally, choices a; and a5 correspond
to choosing ~C in Figure 3-1. Additionally, the outcomes Y1 to Y6 are the observable
outcomes (i.e., decisions of the courts) that correspond to each player’s payoffs. Finally,

the values p1 to p10 correspond to the probability that a player chooses a speciﬁc action

(i.e., p1 is the probability of the Courts of Appeals choosing a], p2 is the probability of the
Courts of Appeals choosing a2, and so on).

To calculate expected utilities I assume that each decision maker’s outcome
preferences are private information. This is the assumption built into the Quantal
Response Equilibrium (QRE) explained earlier. The analyst and other players know (or
assume) only the distribution of these outcome preferences. Thus, while the observed
utility of an outcome Yk for Player i is U,.(Yk), the player also possesses private
information (which is not revealed) changing the utility to U,(Yk) + Ink. We assume that,
on average, Ui.(Yk) = U,(Yk) + ink. Thus, players operating in QRE will be more likely to
choose best responses (i.e., actions that provide the most utility) than worst responses. As
Signorino (2000, 23) describes, “the [private] information about payoffs forces agents to
make probability assessments about actions by other agents and expected utility
calculations for taking actions.” Within the principal-agent framework for judicial
decision-making, this means that Appeals Court judges must estimate the probability of
the Supreme Court taking a speciﬁc action, based upon a calculation of the justices’
aggregate utility for choosing this alternative.

The probability of an outcome is the probability of players choosing
corresponding paths that lead to the outcome. Assuming that the payoff disturbances are

independent, the joint probability of an outcome is simply the product of the action

81

choice probabilities along that path. For example, the probability of outcome Y6 (in
Figure 3-2) is equivalent to the joint probability of the Appeals Court choosing a2, the
Supreme Court choosing an and the Supreme Court choosing am. If we let pj be the
probability that action a,- is chosen at the corresponding decision node, then py5 =
(pa2)(p36)(paio). If we assume the private information component It is independently and
identically distributed as a standard Normal cumulative distribution, denoted (D, then we
can “work up the game tree” and derive conditional choice probabilities for all outcomes.

The probabilities of actions am and a9 are:

 

 

pio=Pr1Us‘<Yd>Us‘(Ys)1 181

= P1“ [US(Y 6) + 1tso > US(Y5) + “85] [9]

= q, Univ—v.09] [10]
Jazxsoi' O'znss J

and p9 = 1 - p10. Similarly, the probabilities of actions a7 and as are:

 

 

p7=PrIUs‘m)>Us‘(Y4)I [11]
= PI’ [U3(Y3) 'I' TEs3 > U3(Y4) + 11354] [12]
= q, Ham—USU.) [13]
Jo'zxss +O'zns4
with pa = 1 - p7.

Assessing the probabilities of actions a3, a4, a5 and a6 proceed in a similar fashion.
However, one must also include the calculations in Equations [10] or [13], since the

Supreme Court will grant certiorari conditional on its utility to rule in favor of civil

82

liberties or foreign policy.49 Since the primary question for this analysis is whether the
Courts of Appeals anticipate Supreme Court responses when rendering their decisions, I
do not derive the choice probabilities for the certiorari stage. Focusing instead on the
probabilities of the Appeals Courts (C) choosing a1 or a2 involves speciﬁcally modeling
C’s uncertainty regarding the decisions made by S (the Supreme Court). C will therefore
base his expected utility for action a2 on the probability assessment of S taking actions as
or as, but in calculating this assessment, C must also assess the probability of S taking
action an or am subsequent to choosing an. Thus,
in =PrIUe‘Ia2)>Ue‘ (MI [14]
= Pf [PSUC.(Y2) + P6Uc.(36) > P4UC.(Y1) + PsUC.(33)] [15]
z PT [(8ch 2) + ths) + 136[1310(Us(Y 6) + TrS6) + P9(US(Y9) + 7‘89] >

P4(UC(Y 1) + 7:C4) + P3lPa(Us(Y 4) + 7‘84) + P7(US(Y 3) + n37] [16]

which equals

[psUC(Y2)+polptoUS(Y6)+p9US(Y3)]]"[p4UC(Yi)+p3[p8Us(Y4)+p7Us(Y3)]]
Jpzsazncs + p26(p2100'2ﬂ'sm + pzoo'znsg) + p2.i0'27rc4 + p‘3(,02i30'27ts8 + pzvazn”)

 

(D

and p1 = 1 — p2.

While this last equation seems technically complicated, its substantive
interpretation is fairly simple and is similar to the interpretation of expected utilities
calculated for Figure 3-1. The values in the numerator correspond to the probability of

the Appeals Courts choosing an action (in this case choosing a2, a vote in favor of foreign

 

’9 See Perry (1991) and Caldeira, Wright and Zorn (1999) for a discussion of Supreme Court strategic
behavior during the certiorari decision.

83

policy interests) based on their expected utility, but also conditioned on the probability of
the Supreme Court choosing, ﬁrst, whether to grant or deny certiorari, and then, (if
certiorari is granted) choosing to support civil liberties or foreign policy interests. The
values in the denominator correspond to the probability of a player’s private information
affecting his choices, combined with a variance term ﬁom the Normal distribution.
Finally, the choice probabilities are assumed to follow the Normal cumulative
distribution. This last assumption allows for the translation of the formal model into a
statistical model (Leblang 2001, 14). Since the outcome probabilities and expected
utilities are functions of a set of explanatory variables and their corresponding
parameters, it is possible to calculate maximum likelihood estimates of the coefﬁcients

using a strategic choice probit model.

RESEARCH DESIGN AND METHODS

Data for this analysis initially are taken from the random sample (N = 230) of
Courts of Appeals decisions, 1946-2000, described in Chapter Two. Unfortunately, this
initial random sample only produced three cases that were subsequently appealed to the
Supreme Court, with only one of the appeals receiving a grant of certiorari. In order to
analyze strategic inﬂuences, a sample of cases from both the Appeals Courts and the
Supreme Court is needed. Therefore, in order to increase the numberof cases decided by
the Supreme Court, I incorporate that data (as explained in Chapter Two). Examining
those Supreme Court cases reveals seventy-two (72) decisions appealed from the Courts
of Appeals. These seventy-two cases are therefore included in this analysis. However, in

order to determine how the Appeals Courts decided these seventy-two cases, I

84

subsequently code the appellate decisions and include those cases in the total number of
cases. Thus, in addition to the initial Appeals Court sample (230), another 72 appellate
cases and 72 Supreme Court cases are included, bringing the total number of cases for
this analysis to 374.

In the strategic choice probit model there are essentially three dependent
variables. The ﬁrst and last dependent variables are whether the Appeals Courts or the
Supreme Court vote in favor of foreign policy interests (coded ‘0’) or civil liberties
claims (coded ‘1’). As I stated in Chapter Two, it is important to note that the federal
government does not have to be a litigant to a particular case in order to express a foreign
policy interest in the outcome. The second dependent variable in the strategic choice
probit model is whether the Supreme Court grants certiorari (coded ‘1’) or denies (coded
‘0’) a request (or does not receive an appeal). Since the dependent variables are
conditioned on the choice probabilities of the two actors, traditional maximmn likelihood
techniques (including multinomial logit and selection models) are inappropriate
(Signorino 1999a, 1999b, 2000, 2001; and Signorino and Yilmaz 2000). Itherefore rely
on a strategic choice probit model.50

Similar to the empirical analysis in Chapter Two, I rely on the partisan afﬁliation
of a judge’s appointing president to serve as proxy for ideological preferences. Initially
judges appointed by Republican presidents are coded ‘0’ and those appointed by
Democratic presidents are coded ‘1’. However, since the unit of analysis is aggregated to
the court level, individual preference measures are combined. This combination is

captured through the independent variable Court Partisanship, which is deﬁned as the

 

5° The strategic choice probit model is estimated using STRAT, a statistical software package designed by
Signorino. For more information on STRAT, visit www.rochester.edu/College/PSC/signorino/.

85

proportion of judges appointed by Democratic presidents. As I discovered in Chapter
Two, Democratic judges are more likely to rule in favor of civil liberties than their
Republican colleagues. However, the hypothesis generated from Figures 3-1 and 3-2
indicates that Appeals Court judges will rule against their most preferred outcome if they
believe the Supreme Court will grant certiorari and reverse the decision. Consequently, if
appellate judges anticipate Supreme Court responses (according to principal agency
theory), then I expect the relationship between Court Partisanship and the dependent
variable either to be non-signiﬁcant or negative — in contrast to the positive expectation
demonstrated in Chapter Two. This variable, therefore, becomes the primary focus of this
chapter. If the principal agent model leads to anticipatory behavior by Appeals Court
judges, then they will mask their ideological preferences if they believe the Supreme
Court will grant certiorari to reverse their decision.

In addition to the ideological variable of interest, the model includes several
control variables (with similar theoretical expectations as the models in Chapter Two).
First, the variable Lower Court Directionality measures the case disposition by the
district court or federal agency conducting the trial. The variable is coded ‘1’ if the lower
court (or agency) ruled in favor of foreign affairs interests, ‘2’ if the court rendered a
mixed decision (both for and against governmental interests), and ‘3’ if the court ruled
against federal government interests. Theoretical expectations indicate the Courts of
Appeals will be more likely to afﬁrm a District Court (or administrative agency) ruling
and the Supreme Court more likely to reverse the lower court ruling. Second,
Constitutional Challenge tracks whether a litigant alleges a speciﬁc constitutional

violation (i.e., a violation of the Fifth Amendment’s Due Process Clause). I hypothesize

86

that judges may be sensitive to constitutional challenges, and consequently, will be more
likely to rule in favor of civil liberties claims. Third, the dummy variable Threshold Issue
measures the presence of a threshold issue such as the political question or act of state
doctrine. As hypothesized, the presence of a threshold issue should be negatively related
to the likelihood of the courts ruling in support of civil liberties claims (i.e., judges will
be more likely to rule in favor of federal government interests). Finally, the dummy
variable National Security Defense controls for the presence of a speciﬁc national
security defense, raised by the federal government. If the government claims an issue of
national security, I hypothesize that the judges will be more likely to rule in favor of the
government. I also include a new variable, not used in Chapter Two, to measure the
degree of dissensus between the Courts of Appeals and the District Courts (or
administrative agencies). Since the strategic choice model incorporates the Supreme
Court’s decision to grant certiorari, the variable Lower Court Dissensus controls for
potential inﬂuences during this stage of the decision-making process. Several scholars
note the frequency with which the Court grants certiorari if a disagreement exists among
the lower courts (Brenner 1979; Brenner and Krol 1989; Perry 1991; Boucher and Segal
1995; and Caldeira, Wright and Zorn 1999). This dummy variable is coded ‘1’ if the
Courts of Appeals reversed (i.e., disagreed) with the lower court and ‘0’ otherwise. If
lower court dissensus exists, I hypothesize that the Supreme Court will be more likely to

grant certiorari to review and correct the disagreement.

87

EMPIRICAL RESULTS

Table 3-1 provides the empirical results of the strategic choice model. For
comparative purposes, the results of the Appeals Courts’ traditional probit model ﬁ'om
Table 2-4 are included. In general, the traditional probit model performs remarkably well,
correctly predicting 68.3% of the overall variance, which translates into a 49.0%
reduction of error over the null model.51

If one were to examine the coefﬁcients in the traditional probit model, the results
would lead to the conclusion that several characteristics signiﬁcantly affect the likelihood
of appellate judges ruling in favor of civil liberties. First, the variable Court Partisanship
is signiﬁcant and in the expected direction. Examining the predicted probabilities of this
variable supports the inference that panels dominated by Democratic judges are 10.3%
more likely to support civil liberties claims than panels dominated by Republicans.
Second, the variable Lower Court Directionality indicates the Appeals Courts are
signiﬁcantly more likely to afﬁrm lower court decisions. If the lower court rules in favor
of civil liberties, appellate judges are 14.0% more likely to support this decision and rule
in a similar fashion (and vice versa). Finally, the traditional probit model indicates the
Courts of Appeals are 22.9% more likely to rule in favor of foreign policy interests if a

National Security Defense is presented.

 

5 l The reduction of error statistic is calculated using the formula provided in Hagle and Mitchell (1992)

 

ROE (%) = 100 x [% correctly predicted - % in null category]

100% - % in null category

88

Table 3-1: Strategic Analysis of Appeals Courts Decisions

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Probit Model Strategic Choice Model
Coefﬁcient Predicted Coefﬁcient Predicted
Qobust Std. Err.) Probability (Std. Error) Probability
Courts of Appeals (merits)
Court .851*** .103 2.477 .001
Partisanship (.299) (2.603)
Lower Court Directionality .484*** .140 .252" .084
(.123 (.132)
Workload -.005 -.028
(.005)
Constitutional Challenge -. 164 -.066
(212)
International Law/Treaty —.075 -.027
(224)
Threshold -.241 -.094
Issue (.209)
National -.658* -.229 .65 1 .000
Security Defense (.371) (1.865)
Criminal -.260 -.099
Case (.202)
Constant -.978 -l .906
Supreme Court (certiorari)
Lower Court .201 ** .112
Directionality (.100)
Lower .186 .021
Court Dissensus (.112)
Constant -l .365
Supreme Court (merits)
Court .619" .156
Partisanship (.333)
Constitutional .457 .013
Challenge (.353)
Constant -1 .655
N 215 359
Null Model 37.8% 56.9%
Correctly Predicted 68.3% 62.9%
Reduction of Error 49.0% 13.9%
*p<.10 **p<.05 ***p<.01

89

 

While these results reinforce the conventional wisdom about decision making in
the appellate tribunals, the more interesting story involves the Appeals Courts and
potential strategic constraints imposed by the hierarchical structure of the federal
judiciary. An examination of the last two columns in Table 3-1 reveals the coefﬁcients
from the strategic choice probit model. Before I discuss the individual coefﬁcients, let me
restate some aspects underlying the strategic choice probit model. First, the model can be
conceptualized as a combination between a multinomial probit model and a system of
simultaneous equations. The model is multinomial insofar as one can estimate the
likelihood of multiple actors choosing different paths (i.e., a1 or a2) without specifying a
particular preference order for the choices. The model is simultaneous in that actions
taken later in the sequence (by other players) affect the likelihood of choices at the
beginning of the sequence. Second, similar to simultaneous equations models, one cannot
include the same regressors in each equation; otherwise the model is unidentiﬁed and
cannot be estimated. Therefore, some of the variables included in the traditional probit
model are excluded in the strategic choice probit model to ensure identiﬁcation of the
model. Finally, since the strategic choice probit model incorporates the decisions of
multiple actors the model is divided into three sections: the Appeals Courts’ decisions on
the merits, the Supreme Court’s certiorari decision, and the Supreme Court’s decisions
on the merits. These three sections are estimated simultaneously and therefore the values
of coefﬁcients in a section are calculated according to their inﬂuence on the dependent
variable and conditioned on the inﬂuence of regressors in other sections.

According to Table 3-1, the strategic choice model performs well, overall,

correctly predicting 62.9% of the variance. This equates to a 13.9% reduction of error

90

over the null model. While this reduction is smaller than the traditional probit model, one
should be cautious about directly comparing these goodness-of-ﬁt estimates. Since the
strategic choice probit model estimates multiple dependent variables (and inﬂuences
across multiple actors) its goodness-of—ﬁt statistics will rarely outperform a model that
only focuses on a single aspect. Therefore, since the strategic choice model offers a
13.9% reduction of error over the null model, we can safely conclude that the model
performs well and subsequently turn to examine individual coefﬁcients.

If we examine the section pertaining to the Courts of Appeals we notice several
points. First, the effects of the variable Court Partisanship become non-signiﬁcant when
the appellate courts are placed within a hierarchical structure. Based on the predictions of
the formal model, I hypothesized that the principal-agent relationship would signiﬁcantly
constrain Appeals Court judges from rendering decisions according to their personal
ideological preferences (as measured by the partisan afﬁliation of the appointing
president). The empirical results in Table 3-1 support this contention. Second, the
variable Lower Court Directionality continues to exert a signiﬁcant inﬂuence, with
appellate panels 8% more likely to rule in favor of civil liberties if the District Court
rendered a similar decision. Finally, the variable National Security Defense loses
statistical signiﬁcance in the strategic choice model. This result is not surprising given
that this variable barely achieved signiﬁcance in the traditional probit model.

These results lead to questions about why partisan inﬂuences disappear in the
strategic context. One possible answer involves the Supreme Court’s potential grant of
certiorari, an aspect not explicitly modeled in a traditional probit analysis. An

examination of the strategic choice model indicates that the Supreme Court is 11.2%

91

more likely to grant certiorari to those appellate decisions which favor civil liberties (i.e.,
the variable Lower Court Directionality, for the Supreme Court, is signiﬁcant and
positive in the Grant of Certiorari decision node). Since the traditional probit model
indicates that panels dominated by Democratic judges are more likely to rule in favor of
civil liberties, this result indicates that their decisions are signiﬁcantly more likely to be
reviewed by the Supreme Court. In the language of principal agency theory, agents who
cast liberal decisions are more likely to be monitored and reviewed by the principal
(especially since the principal becomes increasingly conservative from 1946-2000).
Consequently, the results in Table 3-1 suggest that if the Appeals Courts anticipate
review by the Supreme Court, the appellate judges engage in strategic behavior and
render decisions along non-ideological lines. Stated another way, judges on the Courts of
Appeals are constrained by anticipated responses (i.e., fear of reversal) ﬁ'om rendering
decisions according to their ideological preferences.

While these results provide empirical support for the theoretical expectations
derived ﬁ'om the principal agent model, some words of caution are prudent. The ﬁrst
caveat pertains to the nature of the selected sample. While the initial Appeals Courts
sample consisted of 230 randomly selected cases, only 3 were appealed to the Supreme
Court; and of those 3 appeals, only 1 was granted certiorari. Therefore, I included an
additional 72 cases from the Supreme Court universe that had been appealed to the Court
from the appellate level. Consequently, the strategic choice model examined 374 cases
(302 cases from the Appeals Courts and 72 from the Supreme Court). This equates to a
23.8% certiorari grant rate by the Supreme Court, which is clearly higher than the “fewer

than one-half of 1%” ratio discovered by Songer (1991). Thus, it is possible the

92

conclusions generated by Table 3-1 are an artifact of an inﬂated Supreme Court review
rate. To correct for this discrepancy, I randomly re-sampled (with replacement) the
Appeals Courts decisions and reanalyzed the data. Unfortunately, the strategic choice
probit model would not converge. Since I could not empirically examine potential
strategic interdependence under a more realistic monitoring rate, I remain skeptical about
the inﬂuences of this relationship. Therefore, while I provide empirical support for
anticipatory behavior, I cannot conclusively determine whether the Appeals Courts
anticipate Supreme Court responses and subsequently feel constrained by the actions of
the justices.

The second caveat pertains to the strategic choice model designed by Signorino.
While the model provides an innovative method for examining strategic interaction — an
innovation not supplied by any other statistical method — it does possess certain
disadvantages. For example, since the model incorporates interdependent inﬂuences —
similar to simultaneous equations models — among multiple actors, it is highly sensitive
to misspeciﬁcation. It is therefore impossible to include the same independent variables
as regressors for each actor; doing so results in an unidentiﬁed model. Signorino (2001b,
13) acknowledges, “STRAT does not constrain you to specify regressors in such a way
that the model is guaranteed to be identiﬁed, nor does it perform any sort of error
checking at this point for identiﬁcation. . .. No general results yet exist for determining
when parameters will be identiﬁed in these models.” Consequently, one is required to
simplify the model in order to ensure parameter identiﬁcation, which can be atheoretical.

This respeciﬁcation limits one’s ability to directly compare the coefﬁcients within the

93

strategic choice model to those within a traditional probit model. While inferences can be

made, the conclusive generalizability of those inferences is limited.

CONCLUSIONS

I began this chapter with a statement from Burbank and Friedman (2002) that
questioned whether the familiar hierarchical legal system would change if the primary
deciding factor in cases shifted from the law to ideology and reversal rates. Speciﬁcally, I
ask do judges on the Courts of Appeals guess the preferences of their Supreme Court
colleagues, and does this anticipatory behavior exert a signiﬁcant constraint on their
ability to maximize their personal policy preferences?

To examine these questions initially, I develop a formal model derived from the
tenets of principal agency theory (as modiﬁed to conform to the federal judiciary). Under
complete information, this model provides support for the notion that appellate judges
prefer to render decisions without interference from the Supreme Court. If the Supreme
Court grants certiorari, the justices are more likely to reverse the appellate decision
thereby imposing a negative reputation effect on Appeals Court judges. Therefore,
strategic appellate judges will render non-ideological decisions (or mask their ideological
preferences) if they believe the Supreme Court will grant certiorari to reverse an
ideological decision.

Testing this theoretical expectation involves relying on a strategic choice probit
model. Although certain caveats limit the generalizability of the results, strategic choice
methods allow researchers to explicitly model strategic interdependence among multiple

actors — an advantage not gained in other methods. The empirical results indicate that

94

Appeals Court judges do anticipate responses from the Supreme Court, and adjust their
behavior according to this perceived constraint. While appellate panels dominated by
Democratic judges tend to rule in favor of civil liberties, if they anticipate a grant of
certiorari by the Supreme they will mask these ideological preferences. The consequence
of non-anticipation is a signiﬁcant likelihood of Supreme Court review for those
decisions which support civil liberties (probably because the federal government is more
likely to appeal an unfavorable decision to the Supreme Court than are non-govemmental
litigants). Thus, the hierarchical structure of the federal judiciary exerts a signiﬁcant
constraint on the ability of judges on the Courts of Appeals from rendering decisions

according to their ideological preferences.

95

CHAPTER FOUR: THE HIERARCHY OF JUSTICE
AND THE DISTRICT COURTS

The District Court gives more scope to a judge ’s initiative and discretion ...His conduct
of a trial may fashion and sustain the moral principles of the community. More even than
the rules of constitutional, statutory, and common law he applies, his character and
personal distinction, open to daily inspection in his courtroom, constitute the guarantees

of due process. 52

In Chapter Two I present an individual analysis of inﬂuences on District Court
judges and discover their decisions are impacted by ideological concerns -— similar to the
Appeals Courts and the Supreme Court — and institutional constraints, which are not
signiﬁcant in the higher tribunals. In Chapter Three I provide empirical support for the
notion of anticipatory behavior by Appeals Court judges. If these judges believe the
Supreme Court will review an appeal (and possibly reverse the decision), they will
engage in strategic behavior that constrains ideological decisions. This phenomenon
occurs even though the Supreme Court possesses discretionary jurisdiction and rarely
grants certiorari.

In this chapter I explore anticipatory behavior — and the principal agent model — in
the Federal District Courts. It proceeds under the premise that if principal agency theory
operates at the Appeals Court level — and the empirical evidence in Chapter Three
suggests this is valid — then it should be more pronounced in the District Courts. Since

the Appeals Courts possess mandatory jurisdiction, a higher percentage of District Court

 

‘2 Wyzanski (1959).

96

decisions will be reviewed. Consequently, District Court judges should feel more
constrained by the Appeals Courts than appellate judges feel by the Supreme Court.
However, as I explain later in this chapter, there are also several reasons why District
Court judges will not be constrained by the Appeals Courts. This chapter empirically
explores these theoretical inconsistencies and sheds light on an often overlooked and
under-analyzed judicial entity: the Federal District Courts.

Are District Court judges constrained by the Appeals Courts, according to the
tenets of principal agency theory? Do these judges anticipate responses by appellate
panels and condition their decisions based on these expectations? To address these
questions, I initially discuss the historical development of the District Courts. Then, I
explore previous research pertaining to District judges as policy makers within a judicial
hierarchy. Third, I develop a formal model to identify the theoretical applicability of the
principal agent model and derive testable hypotheses. Finally, I empirically evaluate the

formal model using a strategic choice statistical framework.

HISTORICAL DEVELOPMENT OF THE DISTRICT COURTS

As I mention in the previous chapter, according to Article III of the United States
Constitution, “The Judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time ordain and
establish.” After ratiﬁcation of the Constitution, Congress immediately passed the
Judiciary Act in 1789, establishing the initial structure for the federal judiciary. In
addition to creating the Supreme Court and three circuit courts, the Judiciary Act created

thirteen district courts — one for each ratifying state, plus a court each for Maine and

97

Kentucky. This initial organizational scheme for district courts — honoring state
geographic boundaries — remains in existence in the contemporary judicial structure.
Thus, as Richardson and Vines observe, “the federal judiciary was state-contained, with
the administrative and political structure of the states becoming the organizational
structure of the federal courts” (1970, 21). Each court was presided over by a single
judge, who resided within the district (i.e., within the state).

As the country continued to grow through the addition of more states, Congress
followed by establishing additional district courts. Eventually, however, some states
became large enough to support multiple districts within their geographic borders.
Currently, there are ninety-four federal district courts, covering the ﬁfty states, the
District of Columbia and some US. territories. Twenty-six states possess single districts.
The remaining states possess two or more districts, and three states (California, New
York, and Texas) have four districts (Baum 1998, 27). To staff these increases, Congress
has periodically passed legislation increasing the number of district court judges. The
most recent statute, the Federal Judgeship Act of 1990, created seventy-four new
positions, bringing the current total to 649. Each district court consequently possesses
more than one judge, with the largest district having twenty-eight judgeships (Carp and
Stidham 2001 , 48). Consequently, “for the majority of cases, the district courts are the
point of entry into the federal judicial system. Most cases go no further. Thus, these
courts are the primary center of activity in the federal system” (Baum 1998, 27). Given
the apparent importance of this judicial level, it is incumbent upon scholars to examine

how district court judges resolve disputes. Focusing on this question involves

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determining the extent to which these judges make policy and the types of constraints

experienced during the decision-making process.

POLICY MAKING IN A JUDICIAL HIERARCHY

Initially, scholars of the judiciary did not attribute policy-making ﬁmctions to
district court judges. Instead, they believed these judges engaged more in norm
enforcement than policy making. “When they make policy, the [district] courts do not
exercise more discretion than when they enforce community norms. The difference lies in
the intended impact of the decision. Policy decisions are intended to be guideposts for
future actions; noun-enforcement decisions are aimed at the particular case at hand”
(Jacob 1984, 37). Since the decisions of district courts rarely affected individuals beyond
the speciﬁc litigants they were not considered policy decisions.

However, several scholars disagree with this assertion. “The view that trial courts
do not make policy rests on a narrow and outdated deﬁnition of policy-making — namely,
the conscious establishment of a new rule or standard for handling problems” (Mather
1995, 173). Simply because district court decisions are directed toward ‘the particular
case at hand’ does not exclude them from the policy realm. If this were accurate then
many appellate decisions would also be categorized as ‘norm enforcement’ since they are
also expressed to ‘the particular case at hand.’ As Rowland and Carp note, “trial courts
are also policy-making institutions that allocate social values and privilege. When judges
hear cases of ﬁrst impression, they establish precedent, and in a common-law system this
is the essence of policy formation” (1996, 3). Therefore, while the district courts may not

issue broad decisions that make sweeping policy pronouncements, they still form policy

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through their rulings. This is especially pertinent when district courts rule on questions of
fact, since these questions are virtually immune ﬁom appellate review. Thus, it is the
“day to day power over [these] decisions rather than the ability to change dramatically the
whole course of government” (Shapiro 1964, 41-42), that provides district judges with
opportunities to make policy. However, the question remains as to whether these judges
face additional constraints, imposed through the hierarchical system, that hinder their
ability to formulate policy according to their personal preferences. Stated another way,
are the District Courts agents of the Courts of Appeals, and does this relationship limit
the capacity of district judges to issue ideological decisions?

In Chapter Three I explore a manifestation of principal agency theory between the
Courts of Appeals and the Supreme Court. Building upon previous research
demonstrating agent compliance with the principal’s decisions, I provide empirical
support for the notion that the agent anticipates the principal’s potential response and
conditions his actions accordingly. Through a simple extension of logic, there is every
reason to believe that a similar (and potentially stronger) relationship exists between the
District Courts and the Courts of Appeals. Since the appellate courts do not possess
discretionary control over their dockets they must review all cases brought before them
on appeal. The Supreme Court, in contrast, is able to selectively grant certiorari to a
comparatively small number of cases. As one of the tenets of the principal agent model
indicates, compliance by the agent to the principal’s wishes is directly affected by the
ability of the principal to monitor the agent’s actions. The Supreme Court monitors a

small number of decisions, and yet is able to constrain the Appeals Courts. Therefore,

100

since the Appeals Courts monitor a higher percentage of District Court decisions it is
logical to assume a stronger constraint will exist for the District Courts.

Unfortunately, while this logical extension of principal agency to the District
Courts seems relatively straightforward, there are two theoretical reasons against the
application of the principal agent model to the District Courts. First, the primary
motivation behind an agent’s adherence to the principal — whether one examines
compliance or anticipatory behavior — is the agent’s desire to avoid sanction. For the
judiciary, this equates to a fear of reversal. In Chapter Two I note that the Supreme Court
is prone to reverse the decisions of lower courts when it grants certiorari (Epstein, et. al.
1996). Though the High Court reviews few decisions, the inclination to reverse sends a
signal to the Appeals Courts which exerts a signiﬁcant constraint on their decisions.53
However, the Appeals Courts do not send a similar signal to the District Courts. Instead,
decisions are most likely to be afﬁrmed on appeal; approximately 75% of appeals are
afﬁrmed by the Appeals Courts (Davis and Songer 1988; Songer and Sheehan 1992).
District Court judges are aware of this tendency to afﬁrm. As Judge Graven explains,
“the people of this district either get justice here with me or they don’t get it at all. I’ve
had a number of cases appealed over the years, but I’ve never been overruled. And I’ve
never had a case go to the Supreme Court...” (quoted in Rowland and Carp 1996, 1). If
this quote by Judge Graven exempliﬁes the dominant belief across the District Courts,

why would the judges fear reversal, and subsequently feel constrained by the Appeals

Courts? Perhaps since a non-zero probability of reversal exists (a probability that is larger

 

53 While I provide empirical evidence supporting this contention in Chapter Three, I remain skeptical as to
whether the Appeals Courts are truly constrained in this manner — for the reasons explained in that chapter.

101

than the non-zero probability of the Supreme Court granting certiorari) an application of
the principal agent model to the District Courts is appropriate.

However, a second theoretical reason opposes this application. This reason
involves the ability of District Court judges to estimate legitimately the preferences of the
Appeals Courts. The discussion in Chapter Three, concerning anticipatory behavior by
appellate judges, depends on the assumption that these judges can discern accurately (or
at least reasonably estimate) the ideological preferences of Supreme Court justices. This
is a plausible assumption, given the composition of the Supreme Court (i.e., all nine
justices review cases and issue decisions). Therefore, it is reasonable to assume that
Appeals Court judges may accurately estimate the preferences of the Court. However,
this assumption becomes untenable when one applies it to District Court judges
identifying the preferences of the Appeals Courts. Though appellate judges possess life
tenure — similar to their Supreme Court colleagues - unless a circuit meets en banc, not
all judges will review a case and render a decision. Instead, the majority of Appeals
Courts decisions are rendered in three-judge panels. Since judges are assigned to panels
through a random process, it is nearly impossible for a District Court judge to calculate
which three appellate judges will review an appeal. Perhaps it is possible for District
Courts to identify the aggregate ideological preference of a circuit. For example, scholars
of the Appeals Courts “know” that the Fourth Circuit is extremely conservative and the
Ninth Circuit extremely liberal. Therefore, chances are that a case appealed from a
District Court in Virginia is likely to reach a conservative appellate panel, whereas a case
from California is likely to reach a liberal panel. However, beyond these gross

approximations of panel ideology, District Court judges cannot reasonably estimate the

102

preferences of the reviewing panel. Consequently, they cannot condition their behavior
on expected responses by the Appeals Courts because the preferences of the appellate
panel are unknown.

In sum, while a simple logical extension of the principal agent model to the
District Courts initially leads one to the conclusion that these courts should engage in
anticipatory behavior similar to appellate judges, additional theoretical expectations limit
an application of principal agency theory to the trial level. Given these apparent
contradictions, it is prudent to develop a formal model which provides additional

analytical leverage over testable hypotheses.

FORMAL MODEL OF DISTRICT COURT DECISION MAKING

As I mention in Chapter Three, reliance on formal modeling for judicial behavior
has increased over recent years. “The principal advantage of formal modeling is the
clarity and rigor afforded through deductive analysis. For game theoretic analysis this
means identifying equilibrium conditions not predicting speciﬁc outcomes of a particular
case” (Gates and Humes 1997, 7). Thus, one may explicitly state precise assumptions
about expected behavior and mathematically derive general patterns of behavior (i.e., best
responses) of individuals within a strategic environment. Following in this tradition, I
present a formal model that helps explain the principal agent relationship between the

District Courts and the Courts of Appeals.“

 

5’ Note that this model is a simpliﬁcation of reality and therefore focuses on a narrow set of potential
inﬂuences on judicial behavior.

103

Figure 4-1: Decision Sequence with Complete Information

DISTRICT COURTS

O
B ~B
COURTS OF APPEALS
O O
/ \ / \

(XI + Y), ('Xz + Z) (’Xl - Y7, (X2 - Z) (X1 - Y), ('Xz - Z) ('XI + Y), (X2 + Z)

Note: The payoff matrix assumes that the District Courts prefer to vote in favor of civil liberties (B) and the

Courts of Appeals prefer to vote in favor of foreign policy (~B).

Immediately, one can see in Figure 4-1 the sequential nature of the process.
Decisions on foreign policy issues (or any other issue) are ﬁrst heard in the District
Courts for trial. The majority of litigation in the District Courts is presided over by a
single judge. He can choose between ruling in favor of civil liberties (denoted B for this
game) or he can support foreign policy interests (denoted ~B). Once the District Courts

rule on a case, the Courts of Appeals encounter a similar choice: ruling in favor of civil

104

liberties (B) or foreign policy interests (~B).55 The sequence of choices differentiates this
game from the one developed in Chapter Three. Speciﬁcally, we do not encounter the
intermediate choice of granting certiorari. Since the Appeals Courts possess mandatory
jurisdiction they must review all appeals. In reality “about twenty percent of district court
decisions are appealed in any given year” (Rowland and Carp 1996, 8). However,
examining why certain litigants choose to appeal (or not appeal) is beyond the scope of
this dissertation. Since the Appeals Courts cannot selectively review appeals, I assume
that every case tried in the District Courts is appealed to the Courts of Appeals for
review.

In order to derive equilibrium behavior, one must specify assumptions about
payoffs for the players. These payoffs assist in calculating the expected utilities, which
are necessary to determine the speciﬁc strategies players adopt. As Figure 4-1 illustrates,
judges on the District Courts are motivated by two primary concerns. The ﬁrst involves
the policy outcome of a decision. For illustration purposes, let us assume that the District
Courts prefer to rule in favor of civil liberties and the Courts of Appeals prefer a ruling
supporting foreign policy interests.56 Since the District judges are actors within the
federal judicial system, they receive a policy beneﬁt X1 for each decision they render. I
assume that the judges are policy maximizers, and as such prefer to render decisions

according to their personal ideological preferences (this is the standard assumption for the

 

55 Though the model includes only two choices for both levels of the judiciary, in reality judges possess a
range of policy options beyond these choices.

5" Opposite patterns of behavior will occur if one assumes the District Courts favor foreign policy and the
Courts of Appeals favors civil liberties. If the District Courts prefer similar policy outcomes as the Courts
of Appeals, then these judges will rule according to their preferences without fear of reversal (regardless of
the ideological direction of those preferences).

105

attitudinal model).S7 Therefore, if the District Courts prefer decisions favoring civil
liberties, they receive a positive X1 for each decision reﬂecting this preference and a
negative X] for decisions favoring foreign policy.58 However, these judges realize that the
Appeals Courts can review their decisions and either afﬁrm or reverse their rulings.
When the Appeals Courts review a decision, the District Court judges are subjected to a
reputation effect Y. If the decision is afﬁrmed on appeal, then this reputation effect is
added to the policy beneﬁt (X1 + Y). However, if the Appeals Courts reverse the
decision, then the reputation effect is subtracted from the policy beneﬁt (-X1 — Y). Given
this ordering, it is apparent that District Court judges prefer to have their decisions
afﬁrmed on appeal rather than overturned and do not prefer to rule against their
preferences. Therefore, the preference ordering for District Courts is (X1 + Y) > (X1 -— Y)
> ('XI - Y) > (’Xl + Y)-

Figure 4-1 also reveals the payoffs for the Appeals Courts. First, I assume the
appellate judges are motivated by policy concerns, similar to the district judges. In this
case, according to the illustrative example, the Appeals Courts receive a policy beneﬁt X2
for decisions favoring foreign policy interests and a beneﬁt —X2 for decisions supporting
civil liberties. Again, I assume that the appellate judges are policy maximizers and,
therefore, prefer to render decisions according to their ideological preferences. Second,
unlike the Supreme Court which incurs a cost for granting certiorari, the Appeals Courts

must review all appeals and therefore any cost for review is constant across all cases.

 

’7 Baum (1997) describes other motivational factors for lower court judges, not the least of which is
adherence to legal precedent. This model, by focusing primarily on attitudinal concerns, is therefore an
oversirnpliﬁcation of potential inﬂuences.

58 It is important to note that this term X. applies only to the decision by the District Courts. Though the
ultimate policy decision may favor foreign policy interests, X, will remain positive if the District Courts
voted in favor of civil liberties (though the reputation effect Y will be subtracted from this term (X1 - Y)
consequently producing a smaller payoff).

106

Consequently, this facet is excluded from the model. Third, though the appellate judges
may prefer to render decisions according to their personal preferences, a growing body of
literature demonstrates that these judges face additional constraints (such as legal
precedent and possible review by the Supreme Court), which limit their ability to rule
ideologically.” Thus, a constraint term (Z) is included in their payoff matrix. If the
constraint term is greater than the policy beneﬁt (Z > X2) the Appeals Courts will rule
against their preferences. If the constraint term is less than the policy beneﬁt (Z < X2)
then the appellate judges will vote according to their preferences. In terms of the
illustration explained earlier, Figure 4-1 operates under the assumption that the Appeals
Courts prefer to vote in favor of foreign policy interests. Therefore, if the constraint is
less than the policy beneﬁt, we should expect to observe the appellate panel reversing a
civil liberties decision by the District Courts. However, if the constraint exceeds the
policy beneﬁt, then the Appeals Courts will afﬁrm the decision and vote in favor of civil
liberties.

To determine the expected utility of the District Courts, let me restate the
assumptions of the formal model in mathematical notation.
Deﬁnition of Player Choices:

Let p(B) = probability of decision favoring civil liberties
Deﬁnition of Player Payoffs:

Let X = District Courts Beneﬁt for civil liberties decision

Let Y = District Courts Reputation Effect

Let X2 = Courts of Appeals Beneﬁt for foreign policy decision

 

59 See Songer, Sheehan, and Haire (2000) for a discussion of these constraints and their inﬂuence on
Appeals Court decision making.

107

Let Z = Courts of Appeals Constraint Term
Under a game of complete information the District Courts will choose to vote in favor of
civil liberties only if the expected utility for doing so outweighs the expected utility for
voting in favor of foreign policy interests — conditioned on the responses from the Courts
of Appeals. Thus,

EUDistn'ct (B) X EUDistrict (~B) l1]

PRAppeaIs (B) + PRAppeaIs (~B) >< PRAppeaIs (B) + PRAppeaIs (~B) [2]
Equation [2] stipulates that the expected utility for the District Courts (i.e., their payoffs)
are conditioned on the choices made by the Appeals Courts. Stated another way, the
expected utility for the District Courts is dependent upon whether the Appeals Courts
choose to support civil liberties or rule in favor of foreign policy interests. The District
Courts will therefore weigh their options of choosing to vote in favor of civil liberties
only if doing so outweighs the utility of voting for foreign policy interests. Entering the
potential payoffs into Equation [2] we see that,

P(Xi+Y)+(1-p)(-Xi-Y)><P(XI—Y)+(1-p)(-X1+Y) [3]
Equation [3] is a ﬁrnction of choices made by the Appeals Courts and the subsequent
payoffs afforded to the District Courts. Determining whether the Courts of Appeals will
rule in favor of civil liberties involves examining their respected payoffs between this
vote, and a decision supporting foreign policy interests. Figure 4-1 indicates that the
Appeals Courts receives (-X2 + Z) if it afﬁrms the District Courts’ decision in favor of
civil liberties. However, if the appeal is reversed then the Appeals Courts receive (X2 —
Z) as a payoff. Therefore, determining the expected utility for the Courts of Appeals

involve calculations for X2 and Z. If X2 > Z the panel will reverse the District Court

108

decision, and if the X2 < Z the panel will afﬁrm the decision. While we cannot determine
this calculation a priori, we do know from previous research that the Appeals Courts
afﬁrm approximately 75% of the decisions they review (Songer, Sheehan and Haire
2000). Therefore, the probability of afﬁrrnance is .75 and the probability of reversal is
.25. Consequently, the Courts of Appeals will most likely choose to support civil liberties
(B) when reviewing a decision by the District Courts to support civil liberties. Similarly,
the Appeals Courts will most likely afﬁrm a decision favoring foreign policy interests
when reviewing a decision by the District Courts to support foreign affairs. Substituting
these probabilities into Equation [3] we see that,

.75 (X1 + Y) + .25 (-X1 — Y) X .25(X1 — Y) + .75 (-X1 + Y) [4]

.75X1 + .75Y — .25X1 — .25Y >< .25X1 — .25Y — .75X1 + .75Y [5]
Grouping similar terms on each side of the inequality from Equation [5] we see,

.5X1 + .5Y >< -.5X1 + .5Y [6]

X1 >< Y [7]
Equation [7] informs us that the basic decision for District Court judges is whether the
policy decision outweighs a reputation effect. Since we assume that District Court judges
are policy maximizers then it logically follows that these judges will forego potential
reputation consideration and rule according to the personal policy preferences.
Substituting this result into Equation [1] we are left with the conclusion that,

EUDistrict (B) > EUDistrict (~B) [8]
Equation [8] indicates that the District Courts derive a greater expected utility from
rendering decisions according to their policy preferences without fear of reversal by the

Courts of Appeals. This conclusion is different than the one generated by the formal

109

model in Chapter Three; there the Courts of Appeals are motivated by a fear of reversal.
It is therefore unclear whether the principal agent model is applicable to an examination
of the relationship between the District and Appeals Courts. If the formal model depicted
in Figure 4-1 provides any analytic leverage, it indicates that the proper form for
evaluation is a strategic empirical model.

Empirically testing this formal model involves relaxing the deterministic
assumption of the equilibrium behavior. As I explain in Chapter Three, rather than
identifying Nash equilibria as absolute predictions one must assume that players operate
under Quantal Response Equilibrium (QRE), where “best response functions become
probabilistic (at least from the point of view of an outside observer) rather than
deterministic. Better responses are more likely to be observed than worse responses”
(McKelvey and Palfrey 1995, 1996). Thus, players’ actions, over a series of repeated
games, are calculated on average. Over time, the players are more likely to choose better
strategies than worse strategies, but they do not always play the best strategy with
probability one (McKelvey and Palfrey 1998). Though the formal model may be
represented in terms of complete information, Quantal Response Equilibrium allows for
players to possess limited amounts of private information, which introduces variation in
the probability of Player 1 choosing strategy A. The relaxed assumption of the QRE also
addresses my earlier concern about District Court judges not being able to accurately
determine the preferences of randomly assigned appellate panels. While the District
Courts may be able to identify the general ideological preference of the circuit, the
Appeals Courts will retain private information about the preferences of the three judges

assigned to the appellate panel. Likewise, the District Courts will possess private

110

information regarding their policy preferences and their fear of reversal. This private
information allows for variation within the formal model’s predicted responses, thereby
facilitating empirical tests of these theoretical expectations.

Relying on the same arguments expressed in Chapter Three, I employ a strategic
choice probit model to evaluate empirically whether District Court judges condition their
decisions on anticipated responses by the Appeals Courts. As I explain in the previous
chapter, the theoretical foundations for strategic choice models utilize outcome
predictions from formal models (with an appropriate random error component, given in
the Quantal Response Equilibrium) to calculate players’ expected utilities. Computing
this calculation, however, requires a slight respeciﬁcation of those expected utilities. This

is illustrated in Figure 4-2.60

Figure 4-2: Decision Sequence under
Strategic Choice Model

DISTRICT COURTS
0
a1 a2
PI 92
COURTS OF APPEALS
O 0
a3 a4 as
P3 P4 PS Po
Y1 Y2 Y3 Y4

 

6° This respeciﬁcation of expected utilities illustrates the precise mathematical equations which are
estimated by the strategic choice probit model.

111

The decision sequence depicted in Figure 4-2 is identical to the sequence
discussed in Figure 4-1. The difference lies in replacing the notation for actions and
payoffs and including notations denoting the probabilities of a player selecting a
particular action.

Therefore, the following deﬁnitions apply to Figure 4-2:

Deﬁnition of Player Choices:
Let a1 = District Courts (D) choosing to decide in favor of civil liberties
Let a2 = D choosing to support foreign policy interests
Let a3 = Courts of Appeals (C) choosing to decide in favor of civil liberties
Let a4 = C choosing to support foreign policy interests
Let a5 = C choosing to decide in favor of civil liberties

Let a6 = C choosing to support foreign policy interests

Deﬁnition of Player Outcomes (and Payoffs):

Y1 = D receives (X1 + Y) and C receives (X2 + Z)

Y2 = D receives (X1 — Y) and C receives (X2 — Z)

Y3 = D receives (X1 — Y) and C receives (X2 — Z)

Y4 = D receives (X1 + Y) and C receives (X2 + Z)
It is important to note that choices a1, a3, and a5 correspond to a player choosing B (in
Figure 4-1), a2, a4, and a6 correspond to a player choosing ~B (in Figure 4-1).

Additionally, the outcomes Y1 to Y4 are the observable outcomes (i.e., decisions of the

112

courts) that correspond to each player’s payoffs. Finally, the values p1 to p6 correspond to
the probability that a player chooses a speciﬁc action (i.e., p1 is the probability of the
District Courts choosing an, p2 is the probability of the District Courts choosing a2, and so
on).

To calculate expected utilities I assume that each decision maker’s outcome
preferences are private information. This is the assumption built into the Quantal
Response Equilibrium (QRE) explained earlier. The analyst and other players know (or
assume) only the distribution of these outcome preferences. Thus, while the observed
utility of an outcome Yk for Player i is Ui‘(Yk), the player also possesses private
information (which is not revealed) changing the utility to Ui(Yk) + Ink. We assume that,
on average, U,‘(Yk) = Ui(Yk) + Itik. Thus, players operating in QRE will be more likely to
choose best responses (i.e., actions that provide the most utility) than worst responses. As
Signorino (2000, 23) describes, “the [private] information about payoffs forces agents to
make probability assessments about actions by other agents and expected utility
calculations for taking actions.” Within the principal-agent framework for judicial
decision-making, this means that District Court judges must estimate the probability of
the Appeals Courts taking a speciﬁc action, based upon a calculation of the judges’
aggregate utility for choosing this alternative.

The probability of an outcome is the probability of players choosing
corresponding paths that lead to the outcome. Assuming that the payoff disturbances are
independent, the joint probability of an outcome is simply the product of the action
choice probabilities along that path. For example, the probability of outcome Y4 (in

Figure 4-2) is equivalent to the joint probability of the District Courts choosing a2 and the

113

Appeals Courts choosing as. If we let pj be the probability that action a,- is chosen at the
corresponding decision node, then py4 = (pa2)(p36). If we assume the private information
component It is independently and identically distributed as a standard Normal
cumulative distribution, denoted (I), then we can “work up the game tree” and derive

conditional choice probabilities for all outcomes. The probabilities of actions a, and a5

 

 

are:
ps=PrlUc’(Y4) >Uc'(Y3)] [6]
= PT [Uc(Y 4) + no: > Uc(Y3) + Tics] [7]
z groan—Undo] [8]
\laan4‘I' O'zxc3
and p5 = 1 — p6. Similarly, the probabilities of actions a3 and at are:
in =PrIUc‘IYi)>Ue‘(Y2)I [9]
= Pr [Uc(Y1) + am > UC(Y2) + rtc2] [10]

[11]

 

 

= (+1.01 H]. (12)]

\[Uchl +o‘nc2
with p4 = 1 — p3.

Assessing the probabilities of actions a; and a2 proceed in a similar fashion, but
must also account for the probabilities of actions taken by the Appeals Courts. Focusing
on the probability of the District Courts (D) choosing either of these alternatives (a1 or 32)
involves speciﬁcally modeling D’s uncertainty regarding the decisions made by C (the
Appeals Courts). D will therefore base his expected utility for action a2 on the probability

assessment of C taking actions as or as. Thus,

92 = PF [UD‘(32) > UD‘ (31)] [12]

114

= Pr [pon‘Oln + pon‘IY.) > p3Un’(Y1)+ p4Uo‘(Y2)] [13]
= Pr [PS(UD(Y3) + “05) + P6 (UD(Y4) + “06) >
p3(UD(Y1) + 7103) + P4 (UD(Y2) + N00] [14]

 

= (D [pSUD(Y3)+p6U0(Y4)]_[p3UD(YI)+p4UD(Y2)] [15]

2 2 2 2 2 2 2 2
([0 50' n05+poa nD6+p 30' Irm+p 40' n0,

 

and PI = 1 — P2.

While Equation [15] seems technically complicated, its substantive interpretation
is fairly simple and is similar to the interpretation of expected utilities calculated for
Figure 4-1. The values in the numerator correspond to the probability of the District
Courts choosing an action (in this case choosing a2, a vote in favor of foreign policy
interests) based on their expected utility, but also conditioned on the probability of the
Appeals Courts choosing to support civil liberties or foreign policy interests. The values
in the denominator correspond to the probability of a player’s private information
affecting his choices, combined with a variance term from the Normal distribution.
Finally, the choice probabilities are assmned to follow the Normal cumulative
distribution. This last assumption allows for the translation of the formal model into a
statistical model (Leblang 2001, 14). Since the outcome probabilities and expected
utilities are functions of a set of explanatory variables and their corresponding
parameters, it is possible to calculate maximum likelihood estimates of the coefﬁcients

using a strategic choice probit model.

115

RESEARCH DESIGN AND METHODS

Data for this analysis are taken initially from the random sample (N = 215) of
District Court cases, 1946-2000, described in Chapter Two. From that sample only 103
cases were reviewed by the Courts of Appeals with a published opinion.61 These cases
were subsequently coded at the appellate level, bringing the total number of cases in this
sample to 206 (103 cases at the District Court level and 103 cases at the Appeals Court
level).

In the strategic choice probit model there are essentially two dependent variables.
The ﬁrst dependent variable is whether the District Courts vote in favor of foreign policy
interests (coded ‘0’) or civil liberties claims (coded ‘1’). The second dependent variable
is whether the Appeals Courts vote in a similar fashion (‘0’ for a vote favoring foreign
policy interests and ‘1’ for a decision supporting civil liberties). As I state in the two
previous chapters, it is important to note that the federal government does not have to be
a litigant to a particular case in order to express a foreign policy interest in the outcome.
Since the dependent variables are conditioned on the choice probabilities of the two
actors, traditional maximum likelihood techniques (including multinomial logit and
selection models) are inappropriate (Signorino 1999a, 1999b, 2000, 2001; and Signorino
and Yilmaz 2000). I therefore rely on a strategic choice probit model.62

Similar to the empirical analysis in Chapter Two, I rely on the partisan afﬁliation
of a judge’s appointing president to serve as proxy for ideological preferences. Initially

judges appointed by Republican presidents are coded ‘0’ and those appointed by

 

6' Cases that were reviewed by the Appeals Courts without a published opinion, or were appealed directly
to the Supreme Court are excluded from the sample.

62 The strategic choice probit model is estimated using STRAT, a statistical software package designed by
Signorino. For more information on STRAT, visit www.rochester.edu/College/PSC/signorinol.

116

Democratic presidents are coded ‘1’. However, since the unit of analysis is aggregated to
the court level for appellate panels, individual preference measures are combined for the
Appeals Courts. This combination is captured through the independent variable Court
Partisanship, which is deﬁned as the proportion of judges appointed by Democratic
presidents. As I discovered in Chapter Two, Democratic judges are more likely to rule in
favor of civil liberties than their Republican colleagues. However, as I discover for the
Appeals Courts in Chapter Three, if the tenets of principal agency theory hold, District
Court judges will mask their ideological preferences when they believe their decision will
be overturned on appeal. Consequently, if district judges anticipate appellate responses
(according to principal agency theory), then I expect the relationship between Court
Partisanship and the dependent variable either to be non-signiﬁcant or negative — in
contrast to the positive expectation demonstrated in Chapter Two.

In addition to the ideological variable of interest, the model includes several
control variables (with similar theoretical expectations as the models in Chapter Two). In
the equation for the District Courts, I ﬁrst include the variable Threshold Issue which is a
dummy variable that measures the presence of a threshold issue such as the political
question or act of state doctrine. As hypothesized, the presence of a threshold issue
should be negatively related to the likelihood of the courts ruling in support of civil
liberties claims (i.e., judges will be more likely to rule in favor of federal government
interests). Second, I include the dummy variable National Security Defense to control for
the presence of a speciﬁc national security defense, raised by the federal government. If
the government claims an issue of national security, I hypothesize that the judges will be

more likely to rule in favor of the government. Finally, Criminal Case measures whether

117

the courts are reviewing criminal petitions related to foreign affairs.63 For the reasons
stated in Chapter Two (i.e., high frequency of frivolous challenges), I hypothesize that
judges will be more likely to rule in favor of foreign policy interests when resolving
criminal appeals.

In the equation for the Courts of Appeals, in addition to the ideological variable of
interest, I include the variable Lower Court Directionality to control for potential
inﬂuences from the disposition of the case at trial. The variable is coded ‘1’ if the lower
court (or agency) ruled in favor of foreign affairs interests, ‘2’ if the court rendered a
mixed decision (both for and against governmental interests), and ‘3’ if the court ruled
against federal government interests. Theoretical expectations indicate the Courts of
Appeals will be more likely to afﬁrm a District Court ruling. Second, I include the
variable Constitutional Challenge to track whether a litigant alleges a speciﬁc
constitutional violation (i.e., a violation of the Fifth Amendment’s Due Process Clause). I
hypothesize that judges may be sensitive to constitutional challenges, and consequently,
will be more likely to rule in favor of civil liberties claims. Finally, the variable
International Law or Treaty measures the presence of an issue related to international law
or treaties signed by the United States (both bilateral, such as extradition treaties with
speciﬁc countries and multilateral, such as the Geneva Convention). I hypothesize that
the presence of a claim focused on a violation of a speciﬁc treaty or norm of international
law will persuade federal judges to rule in favor of individuals (i.e., against the interests

of the federal government).

 

‘53 Examples include military appeals for criminal convictions, convictions for espionage or treason, drug
related offenses (importation or arrests on the high seas) or convictions for violations of business (i.e.,
violations of the Trading with the Enemy Act).

118

EMPIRICAL RESULTS

Table 4-1 provides the empirical results of the strategic choice model. For
comparative purposes, the results of the District Courts’ traditional probit model from
Table 2-4 are included. A restatement of these results is probably warranted before I turn
to discuss the other estimates. In general, the traditional probit model performs
remarkably well, correctly predicting 57.2% of the overall variance, which translates into
a 34.8% reduction of error over the null model.64

If one were to examine the coefﬁcients in the traditional probit model, the results
would lead to the conclusion that several characteristics signiﬁcantly affect the likelihood
of appellate judges ruling in favor of civil liberties. First, the variable Court Partisanship
is signiﬁcant and in the expected direction. Examining the predicted probabilities of this
variable supports the inference that Democratic judges are 7.0% more likely to support
civil liberties claims than Republicans. Second, the variable National Security Defense
indicates that District Courts are 23.8% more likely to rule in favor of foreign policy
interests if a speciﬁc claim of nationalisecurity is raised by the government. Finally, the
traditional probit model indicates that District Court judges are 19.5 % more likely to rule

in favor of foreign policy interests if they resolve a criminal case.

 

6’ The reduction of error statistic is calculated using the formula provided in Hagle and Mitchell ( 1992)

 

ROE M) = 100 x [% correctly predicted — % in null category]

100% - % in null category

119

Table 4-1: Strategic Analysis of District Courts

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

120

Probit Model Strategic Choice Model
Coefﬁcient Predicted Coefﬁcient Predicted
(Robust Std. Err.) Probability (Std. Error) Probability
District Courts
Court .390* .070 .918" .174
Partisanship (.225) (.430)
Workload .001 .003
(.007)
Constitutional -. 164 -.064
Challenge (.212)
International -.l79 -.058
Law/Treaty (.334)
Threshold .031 .008 .436 .01 1
Issue (.247) (.289)
National -.668** -.238 -.521*** .277
Security Defense (.327) (.1 19)
Criminal -.528** -.195 -.355* .156
Case (.252) (.178)
Constant -.302 (.374) -.313 (.211)
Appeals Courts
Court .941 ** .1 88
Partisanship (.420)
Lower Court .130* .113
Directionality (.063)
Constitutional .772 .052
Challenge (.526)
International -.871 .048
Law/Treaty (.677)
Threshold
Issue
National
Security Defense
Criminal
Case
Constant 1.249 (.336)
N 165 206
Null Model 34.4% 35.3%
Correctly Predicted 57.2% 44.6%
Reduction of Error 34.8% 14.4%
*p<.10 **p<.05 ***p<,01

 

While these results reinforce the conventional wisdom about trial court decision
making, the more interesting story involves the application of principal agency theory to
the District Courts and the potential constraints imposed by a hierarchical structure. An
examination of the last two columns in Table 4-1 reveals the coefﬁcients from the
strategic choice probit model. As I did in Chapter Three, before I discuss the individual
coefﬁcients, let me restate some aspects underlying the strategic choice probit model.
First, the model can be conceptualized as a combination between a multinomial probit
model and a system of simultaneous equations. The model is multinomial insofar as one
can estimate the likelihood of multiple actors choosing different paths (i.e., a] or a2)
without specifying a particular preference order for the choices. The model is
simultaneous in that actions taken later in the sequence (by other players) affect the
likelihood of choices at the beginning of the sequence. Second, similar to simultaneous
equations models, one cannot include the same regressors in each equation; otherwise the
model is unidentiﬁed and carmot be estimated. Therefore, some of the variables included
in the traditional probit model are excluded in the strategic choice probit model to ensure
identiﬁcation of the model. Finally, since the strategic choice probit model incorporates
the decisions of multiple actors the model is divided into two sections: the District
Courts’ decisions on the merits and the Appeals Courts’ decisions on the merits. These
sections are estimated simultaneously and therefore the values of coefﬁcients in a section
are calculated according to their inﬂuence on the dependent variable and conditioned on
the inﬂuence of regressors in other sections.

Overall, this model performs well, correctly predicting 44.6% of the variance for

a 14.4% reduction of error over the null model. While this reduction is smaller than the

121

traditional probit model, one should be cautious about directly comparing these
goodness-of—ﬁt estimates. Since the strategic choice probit model estimates multiple
dependent variables (and inﬂuences across multiple actors) its goodness-of—ﬁt statistics
will rarely outperform a model that only focuses on a single aspect. Therefore, since the
strategic choice model offers a 14.4% reduction of error over the null model, we can
safely conclude that the model performs well and subsequently turn to examine
individual coefﬁcients.

If we examine the section pertaining to the District Courts we notice several
points. First, the ideological variable Court Partisanship remains statistically signiﬁcant
and positive. As I mention earlier, if District Court judges anticipate responses on appeal
and fear reversal, then I hypothesize this constraint would curtail their desire to rule
ideologically. This is the pattern I discover in Chapter Three with regards to the Appeals
Courts and their fear of reversal by the Supreme Court. However, according to Table 4-1,
District Court judges continue to rule ideologically, even when evaluated in a strategic
environment. An examination of the predicted probability indicates that Democratic
judges are 17.4% more likely to rule in favor of civil liberties concerns than their
Republican colleagues. Second, the control variables National Security Defense and
Criminal Case continue to exert a signiﬁcant inﬂuence on District Court behavior. Judges
are 27.7% more likely to rule in favor of foreign policy interests when presented with a
National Security Defense and 15.6% more likely when ruling on a Criminal Case.

These results lead to questions about why partisan inﬂuences remain signiﬁcant to
District Court judges in a hierarchical relationship when they vanish for judges on the

Courts of Appeals. As I mention earlier in this chapter, there are two potential reasons

122

against applying principal agency theory to the District Courts. The ﬁrst reason involves
the threat of sanction (considered a primary motivation for agents operating in a
hierarchical structure). While the Courts of Appeals review substantially more cases than
the Supreme Court, they are also more likely to afﬁrm District Court decisions than the
Supreme Court. Judge Graven’s statement illustrates this phenomenon, “I’ve had a
number of cases appealed over the years, but I’ve never been overruled. And I’ve never
had a case go to the Supreme Court...” (quoted in Rowland and Carp 1996, 1). District
Court judges may have a higher frequency of cases reviewed on appeal, however, the
likelihood of being reversed is extremely low. This is different from Appeals Court
judges whose frequency of review is small, but the likelihood of being reversed (if
certiorari is granted) is relatively high. Consequently, the federal trial judges do not
possess an incentive to anticipate the behavior of the Appeals Courts, nor adjust their
actions accordingly.

The second reason against applying the tenets of principal agency theory to the
District Courts involves the ability of these judges to estimate legitimately the
preferences of the Appeals Courts. As I mention earlier in this chapter and in Chapter
Three, the principal agent model is more conducive to examining anticipatory behavior
by the Appeals Courts because one can reasonably assume that these judges can discern
accurately (or at least reasonably estimate) the ideological preferences of Supreme Court
justices. However, this assumption becomes untenable when one applies it to District
Court judges identifying the preferences of the Appeals Courts. Since appellate judges
are assigned to panels through a random process, it is nearly impossible for a District

Court judge to calculate which three appellate judges will review an appeal.

123

Consequently, these judges cannot condition their behavior on expected responses by the

Appeals Courts because the preferences of the appellate panel are unknown.

CONCLUSIONS

In the previous chapter I provide initial empirical support for the notion that
judges on the Courts of Appeals anticipate responses from the Supreme Court and
constrain their ideological voting on cases if they believe the Supreme Court will grant
certiorari and reverse a decision. This chapter, therefore, addresses the question as to
whether similar behavior exists in the federal District Courts. Are District Court judges
constrained by the Appeals Courts, according to the tenets of principal agency theory? Do
these judges anticipate responses by appellate judges and condition their decisions based
on these expectations?

To examine these questions initially, I develop a formal model derived from the
tenets of principal agency theory (as modiﬁed to conform to the federal judiciary). Under
complete information, this model provides support for the notion that district judges are
not constrained by the actions of appellate panels. Since the majority of cases reviewed
on appeal are afﬁrmed, the District Courts are not motivated by a fear of reversal.
Consequently, the formal model indicates that the federal trial judges remain relatively
free to render ideological rulings without the threat of sanction on appeal.

Testing this theoretical expectation involves relying on a strategic choice probit
model. Although I raise certain caveats in Chapter Three that limit the generalizability of
the results (some of these caveats pertain to the model in this chapter), strategic choice

methods allow researchers to explicitly model strategic interdependence among multiple

124

actors — an advantage not gained in other statistical methods. The empirical results of the
strategic choice model indicate the District Courts are not constrained by the anticipated
behavior of the Appeals Courts. Whether one examines District Courts in isolation ﬁom
other tribunals or within a hierarchical structure, conclusions regarding ideological voting
remain consistent: Democratic judges are more likely to rule in favor of civil liberties
than their Republican colleagues. Thus, the hierarchical structure of the federal judiciary
does not appear to be a signiﬁcant constraint to the District Courts as it seemingly is for

the Courts of Appeals.

125

CHAPTER FIVE: DEF ENDERS OF CIVIL LIBERTIES
OR CHAMPIONS OF NATIONAL SECURITY?

The perennial issue of the appropriate balance between civil liberties and the demands of
national security has lost none of its poignancy; nor is it any easier today than it was in
the past to determine how, where and when to draw the line between these two sets of

interests. 65

Three signiﬁcant limitations have hindered our understanding of how the
judiciary operates in the foreign relations scheme. First, within the small body of
literature examining courts and foreign policy, a majority of these studies utilize
qualitative techniques to assess historical relationships between the three branches of the
federal government. These studies examine whether the Supreme Court defers to either
the President or Congress in the formulation and conduct of US. foreign policy.
Consequently, the Judiciary is viewed as a subservient branch of government rather than
an equal component of the US. system.

Second, the constitutional authority imposed upon the judiciary extends beyond
balancing disputes between the political branches of government. Courts are responsible
for protecting the civil liberties of citizens within the United States. Arguably, this
responsibility becomes difﬁcult to fulﬁll when judges resolve disputes between the rights
of individuals and the authority of the federal government to engage in foreign affairs or
protect national security. A dearth of empirical analyses exists which systematically

explore patterns of judicial behavior under these circumstances.

 

‘55 Clarke and Neveleff(1984, 493).

126

Finally, most studies focus exclusively on the United States Supreme Court. The
Federal Courts of Appeals and District Courts receive virtually no attention. With the
Supreme Court having more control over its docket, and thereby free to reduce the
number of cases it hears, the decisions of the lower federal courts become more
signiﬁcant because the possibility of review is reduced. Consequently, the Courts of
Appeals and District Courts provide additional constraints on the political branches of
government. Therefore, an examination of all levels of the federal judiciary is essential in
understanding how the courts resolve foreign policy disputes. ’

The chapters of this dissertation therefore contribute to several literatures. First,
the analyses augment studies of US. foreign policy by focusing on a historically
neglected branch. Second, the examinations contribute to the literature on judicial politics
by comparing structural differences among the three levels of the federal court system.
Throughout the entire project, two main themes emerge: what roles have the federal
courts assumed in resolving foreign policy disputes, and does the structure of the judicial
system exert a substantial inﬂuence on judicial decision making in foreign policy cases?
This chapter highlights the major ﬁndings of the various analyses and speculates on the

changes brought about since the terrorist attacks of September 1 1, 2001.

ANALYTICAL CONTRIBUTIONS

As I mention in Chapter One, assessing the impact of the federal judiciary on US.
foreign policy is not an easy task. To do so adequately requires an understanding of
several different literatures: international relations/foreign policy theories,

constitutional/legal theories, and theories of judicial politics (including individual

127

behavioral and institutional theories). Based on a juxtaposition of these theories, I
initially identify three theoretical expectations. First, courts should possess an initial
inclination to defer to governmental authority when adjudicating foreign policy disputes.
Second, while the judiciary may possess an initial tendency to rule in favor of
governmental interests, liberal judges will be more likely to support civil liberties claims
against the government. Finally, institutional inﬂuences resulting from the hierarchical
judicial structure should signiﬁcantly constrain the ability of lower court judges to render
decisions according to their ideological preferences.

In order to assess the validity of these theoretical expectations, I conduct a series
of empirical analyses. Initially, I examine each level of the federal judiciary in isolation;
that is, under the assumption that the hierarchical structure of the judiciary does not exert
a signiﬁcant inﬂuence. The answer about whether judges are defenders of civil liberties
or champions of national security is resolved in favor of the latter. Based on separate
probit models one can reasonably conclude that federal judges are champions of national
security. The lower federal courts seldom rule in favor of civil liberties claims (34.4% for
the District Courts and 37.8% for the Appeals Courts). The Supreme Court is more
sensitive to individual challenges, supporting these claims in 44.0% of their decisions.
However, it is apparent that the justices more often defer to governmental authority in
foreign relations. While the federal judiciary is prone to support foreign policy interests,
it is important to understand the conditions under which these judges will rule in favor of
civil liberties claims. An important inﬂuence is the ideological preferences of judges. The
empirical results indicate that more liberal judges —- as measured by partisan afﬁliations

of the appointing president — are more likely to render decisions in favor of civil liberties.

128

This result holds for each level of the federal judiciary, although the results are more
pronounced in the Supreme Court, less so for the Appeals Courts, and the weakest for
District Courts. Therefore, the ﬁrst two theoretical expectations are conﬁrmed through
the individual empirical analyses: judges possess an initial inclination to rule in favor of
foreign policy interests, however, liberal judges are more likely to support civil liberties
claims than their conservative colleagues.

To assess whether the hierarchical system constrains judicial decision making, I
ﬁrst analyzed the Courts of Appeals. Do judges on the Courts of Appeals guess the
preferences of Supreme Court justices when rendering decisions in foreign affairs, and
does this anticipatory behavior signiﬁcantly impact or constrain the ability of these
judges to maximize their personal policy preferences? To examine these questions
initially, I develop a formal model derived from the tenets of principal agency theory (as
modiﬁed to conform to the federal judiciary). Under complete information, this model
provides support for the notion that appellate judges prefer to render decisions without
interference from the Supreme Court. If the Supreme Court grants certiorari, the justices
are more likely to reverse the appellate decision thereby imposing a negative reputation
effect on Appeals Court judges. Therefore, strategic appellate judges will render non-
ideological decisions (or mask their ideological preferences) if they believe the Supreme
Court will grant certiorari to reverse an ideological decision. Testing this theoretical
expectation involves relying on a strategic choice probit model. Although certain caveats
limit the generalizability of the results, strategic choice methods allow researchers to
explicitly model strategic interdependence among multiple actors -— an advantage not

gained in other methods. The empirical results indicate that Appeals Court judges do

129

anticipate responses from the Supreme Court, and adjust their behavior according to this
perceived constraint. While appellate panels dominated by Democratic judges tend to rule
in favor of civil liberties, if they anticipate a grant of certiorari by the Supreme they will
mask these ideological preferences. The consequence of non-anticipation is a signiﬁcant
likelihood of Supreme Court review for those decisions which support civil liberties
(probably because the federal government is more likely to appeal an unfavorable
decision to the Supreme Court than are non-governmental litigants). Thus, the
hierarchical structure of the federal judiciary exerts a signiﬁcant constraint on the ability
of judges on the Courts of Appeals from rendering decisions according to their
ideological preferences.

Given this empirical support for anticipatory behavior by the Courts of Appeals,
one might believe a similar phenomenon would exist for the District Courts. Since the
appellate courts do not possess discretionary control over their dockets they must review
all cases brought before them on appeal. The Supreme Court, in contrast, is able to
selectively grant certiorari to a comparatively small number of cases. As one of the
tenets of the principal agent model indicates, compliance by the agent to the principal’s
wishes is directly affected by the ability of the principal to monitor the agent’s actions.
The Supreme Court monitors a small number of decisions, and yet is able to constrain the
Appeals Courts. Therefore, since the Appeals Courts monitor a higher percentage of
District Court decisions it is logical to assume a stronger constraint will exist for the
District Courts. However, the empirical results of the strategic choice model indicate the
District Courts are not constrained by the anticipated behavior of the Appeals Courts.

There are two potential reasons for this empirical difference. The ﬁrst reason involves the

130

threat of sanction (considered a primary motivation for agents operating in a hierarchical
structure). While the Courts of Appeals review substantially more cases than the Supreme
Court, they are also more likely to afﬁrm District Court decisions than the Supreme
Court. The second reason against applying the tenets of principal agency theory to the
District Courts involves the ability of these judges to estimate legitimately the
preferences of the Appeals Courts. Since appellate judges are assigned to panels through
a random process, it is nearly impossible for a District Court judge to calculate which
three appellate judges will review an appeal. Consequently, these judges cannot condition
their behavior on expected responses by the Appeals Courts because the preferences of

the appellate panel are unknown.

CIVIL LIBERTIES PROTECTION IN A POST-SEPTEMBER 1 l1‘“ ENVIRONMENT

Within weeks of the September 11, 2001, attacks Congress passed the Patriot Act,
designed to provide the federal government with the authority to combat terrorism.
However, while the Act “may not have been designed to restrict American citizens’ civil
liberties, its unintended consequences threaten the fundamental constitutional rights of
people who have absolutely no involvement with terrorism” (Whitehead and Aden 2002,
1083). Currently, the federal courts are reviewing cases involving aspects of the
government’s “war on terrorism.” Three cases are especially noteworthy and are explored
qualitatively in this section. The ﬁrst two cases involve Courts of Appeals decisions
regarding the government’s ability to conduct secret deportation hearings for individuals

suspected of aiding terrorist causes. The ﬁnal case, recently disposed of by a Supreme

131

Court decision, involves a government directive to detain permanent resident aliens
during deportation proceedings regardless of whether they pose a ﬂight risk.

On August 26, 2002, the Sixth Circuit Court of Appeals in Cincinnati rendered a
decision in the case Detroit Free Press v. Ashcroft. This case involved the deportation
hearing of Rabih Haddad, accused of operating an Islamic charity and funneling
contributions to suspected terrorist organizations. Haddad’s family, friends (including
Congressman John Conyers), and the media sought to attend his hearing, but were
informed that the proceedings were closed to the public and the press. Writing for a
unanimous panel, Judge Damon Keith stated, “the public’s interests are best served by
open proceedings. A true democracy is one that operates on faith - faith that government
ofﬁcials are forthcoming and honest, and faith that informed citizens will arrive at logical
conclusions. This is a vital reciprocity that America should not discard in these troubling
times. Without question, the events of September 11, 2001, left an indelible mark on our
nation, but we as a people are united in the wake of the destruction to demonstrate to the
world that we are a country deeply committed to preserving the rights and freedoms
guaranteed by our democracy.”66 Following these statements, the panel afﬁrmed the
lower court decision and supported the civil liberties challenge to the government.

In contrast to this decision is a ruling by the Third Circuit in Philadelphia, decided
on October 8, 2002. The case is a response by New Jersey newspapers to repeated denials
by the immigration courts to docket information and access to deportation hearings. The
immigration courts denials stemmed from a memorandum issued by Chief Immigration
Judge Creppy directing courts to “close the hearings to the public and avoid discussing

the cases or otherwise disclosing information about the cases to anyone outside the

 

6‘ Detroit Free Press v. Ashcroft 303 F.3d 681 (2002).

132

Immigration Court.”67 According to the majority opinion, written by Judge Edward
Becker, “this case arises in the wake of September 11, 2001, a day on which American
life changed drastically and dramatically. The era that dawned on September 11th, and the
war against terrorism that has pervaded the sinews of our national life since that day, are
reﬂected in thousands of ways in legislative and national policy, the habits of daily living,
and our collective psyches. Since the primary national policy must be self-preservation, it
seems elementary that, to the extent open deportation hearings might impair national
security, that security is implicated in the logic test.”68 The Third Circuit ruled in favor of
foreign policy interests, concluding that the federal government had justiﬁed its request
for secret deportation hearings, given the importance of preserving national security.

The ﬁnal case, handed down by the Supreme Court on April 29, 2003, involves
the mandatory detention of permanent aliens who do not pose a ﬂight risk, but are
undergoing deportation proceedings due to criminal convictions. The respondent, Hyung
Joon Kim, entered the United States in 1984 and, at age six, became a lawful permanent
resident alien. In 1996, Kim was convicted in California state court of ﬁrst-degree
burglary. Consequently, the Immigration and Naturalization Service (INS) initiated
deportation proceedings, and detained him pending removal. The District Court agreed
with Kim’s assertion that mandatory detention without a determination of ﬂight risk
violated his due process rights. Subsequently, the Court of Appeals for the Ninth Circuit,
afﬁrmed this decision. Appeals courts in the Third, Fourth, and Tenth Circuits reached
similar conclusions, ﬁnding a constitutional protection against mandatory detention.69 On

consolidated appeal, the Supreme Court reversed these decisions. Writing for a 5-4

 

2; North Jersey Media Group, Inc. v. Ashcroft 2002 US. App. LEXIS 21032 (2002).
Ibid.
69 However, the Seventh Circuit rejected a similar constitutional challenge in Farm v. Perryman (1999).

133

majority, Chief Justice Rehnquist stated, “any policy toward aliens is vitally and
intricately interwoven with contemporaneous policies in regard to the conduct of foreign
relations, the war power, and the maintenance of a republican form of government.”70 As
such, and given the exercise of broad powers regarding immigration and naturalization,
“Congress regularly makes rules that would be unacceptable if applied to citizens.”71
Therefore, the Supreme Court ruled in favor of foreign policy interests by allowing the
detention of aliens during their deportation hearings.

While these three contradictory rulings indicate potential confusion within the
courts as to their authority and responsibility in the post-September 11th environment, the
decisions follow some of the theoretical patterns demonstrated above. One of the most
substantial inﬂuences on judicial decision making in foreign affairs is the partisan
composition of the court. The empirical evidence indicates panels dorrrinated by
Democratic judges are more likely to rule in favor of civil liberties. In Detroit Free Press
judges appointed by Democratic presidents dominate the panel, whereas in North Jersey
Media Group, and Kim Republican judges dominate the panel. These recent cases ﬁrrther
support the theoretical expectations of ideological inﬂuences and civil liberties decisions.

The second substantial inﬂuence empirically supported earlier involves the
directionality of the lower court’s decision. Unfortunately, the pattern does not

1th cases. All three cases were disposed

completely hold in the three post-September I
initially in federal district court with a pro-civil liberties decision. Based on theoretical

expectations, the appeals courts should have afﬁrmed all decisions. However, this only

 

7° Demore v. Kim 123 s. Ct. 1708 (2003).
7‘ Ibid.

134

happened in Detroit Free Press and Kim. The Third Circuit, in North Jersey Media
Group, reversed the district court ruling and issued a decision in favor of foreign affairs.
Finally, it is difﬁcult to determine whether the appellate panels anticipated
potential Supreme Court responses when they rendered decisions. However, we see in
Demore v. Kim that the Supreme Court grants certiorari and overturns several
consolidated Appeals Court decisions. Perhaps this action by the Court has sent a signal
to the appellate judges that will signiﬁcantly constrain ﬁrture decisions. Further rulings
by the lower courts and by the US. Supreme Court are needed to systematically
determine the long-tenn effects of September 11, 2001, on judicial behavior. As Smith
(2002) acknowledges, questions remain “about the hundreds of detainees in Cuba as well
as the detainees in the United States, all of whom still live under the authority of the
American legal system but not — for any practical purposes — within the coverage of the
Constitution and its exalted protections for individuals’ rights and liberties.” Therefore,
additional empirical examinations will be needed to monitor, understand, and explain the

1th

impact of September 1 on the federal judiciary.

135

APPENDIX ONE: CODING RULES

BASIC INFORMATION

CASENUM Case identiﬁcation number

DISTCITE District Court case citation (if applicable)

APPCITE Appeals Court case citation (if applicable)

SUPCITE Supreme Court case citation (if applicable)

CIRCUIT Judicial Circuit of Court reviewing case (for Supreme Court, code
circuit where case originated) 12 = DC 13 = Military

YEAR Year of decision

INCDATE Date of incident being disputed

ORALDATE Date of oral argument

DECDATE Date of opinion

ORIGIN Original entity to dispose of the case

DISTDISP

APPDISP

SUPDISP

l = federal district court or federal magistrate

2 = federal administrative agency (including commissions and review
boards)

3 = military court (e. g., a court martial, include habeas corpus from
military)

4 = state court (includes habeas corpus petitions after conviction in state
court)

5 = other (e. g., Tax or Bankruptcy Court)

9 = not ascertained

District court treatment of case (if applicable)
1 = for plaintiff/prosecution
2 = for respondent/defendant
3 = for plaintiff/prosecution in part and respondent/defendant in part
4 = petition denied or dismissed
5 = certiﬁcation to another court
9 = not ascertained

Appeals court treatment of case (if applicable)
1 = afﬁrmed
2 = reversed (include reversed, vacated, remanded or any combination)
3 = afﬁrmed in part and reversed in part (or modiﬁed in any aspect)
4 = petition denied or appeal dismissed
5 = certiﬁcation to another court
9 = not ascertained

Supreme Court treatment of case (if applicable)
1 = afﬁrmed
2 = reversed (include reversed, vacated, remanded or any combination)
3 = afﬁrmed in part and reversed in part (or modiﬁed in any aspect)

136

4 = petition denied or appeal dismissed
9 = not ascertained

VOTE Vote margin

LITIGANT INFORMATION

NUMAPPL Total number of appellants/plaintiffs (99 if unable to ascertain)
APPLIST Numeric coding of the ﬁrst listed appellant (use litigant code sheet)
APPL2ND Numeric coding of second appellant (if different)

AMICIAPP Number of arnici on behalf of appellants/plaintiffs

AMAPPl ST Numeric coding of ﬁrst appellant amicus (use litigant code sheet)
AMAPPZND Numeric coding of second appellant/plaintiff amicus (if different)
NUMRESP Total number of respondents/defendants (99 if unable to ascertain)
RESPl ST Numeric coding of the ﬁrst listed respondent (use litigant codes)
RESPZND Numeric coding of the second respondent (if different)

AMICIRES Number of arrrici on behalf of respondents/defendants
AMRESIST Numeric coding of ﬁrst respondent amicus (use litigant code sheet)
AMRESZND Numeric coding of second respondent amicus (if different)

LEGAL INFORMATION

CONSTl Most frequently cited Constitutional provision (listed in headnotes)

Example: 001 = Article I of original Constitution
101 = 1"t Amendment
114 = 14‘11 Amendment

CONST2 Second most frequently cited Constitutional provision

DECUNCON Speciﬁc declaration by the court that a statute or administrative

action is unconstitutional (do not code if the court merely mentions
a procedural violation of the Constitution; for example, that the
police conducted a search or seizure in violation of the 4th
Amendment)

0 = request for declaration denied / statute or action deemed constitutional

1 = act of Congress declared unconstitutional

2 = interpretation/application of federal law unconstitutional

3 = administrative action or reg declared unconstitutional on its face

4 = interpretation/application of agency reg unconstitutional

5 = state constitution declared unconstitutional on its face

6 = interpretation/application of state constitution unconstitutional

7 = state (including substate) law or regulation unconstitutional on its face

8 = interpretation/application of state (or substate) law unconstitutional

137

CONSTIT

FEDLAW

PROCED

TREATY

F ORLAW

THRESHl

RESTHRI

Did an interpretation of the Constitution favor the

appellant/plaintiff?

l = no

2 = yes

9 = mixed
Did an interpretation of federal law favor the appellant/plaintiff
(excluding sentencing guidelines)?

1 = no

2 = yes

9 = mixed
Did an interpretation of rules of procedure, judicial doctrine, or
previous case law favor the appellant/plaintiff?

1 = no '

2 = yes

9 = mixed
Did an interpretation of an intemational treaty or bilateral
agreement favor the appellant/plaintiff?

1 = no

2 = yes

9 = mixed
Did an interpretation of domestic laws from a foreign country
favor the appellant/plaintiff?

1 = no

2 = yes

9 = mixed

Numeric code of ﬁrst threshold issue (if applicable)
1 = proper jurisdiction
2 = failure to state a claim
3 = standing
4 = mootness
5 = exhaustion of administrative remedies
6 = timeliness (includes statutes of limitation and late ﬁling of fees)
7 = governmental immunity (includes act of state and FSIA claim)
8 = frivolousness
9 = political question

10 = other
Did the court resolve the ﬁrst threshold issue in favor of the
appellant/plaintiff?

1 = no

2 = yes

138

9 = mixed

THRESHZ Numeric code of second threshold issue (if different)

RESTIRZ Did the court resolve the second threshold issue in favor of the
appellant/plaintiff?

ISSUE INFORMATION

ISSUE] Numeric code of most signiﬁcant issue (use issue code sheet)

DIRECT] Directionality of most signiﬁcant issue

Criminal Cases (including espionage)
1 = for government
3 = for defendant
9 = mixed

Civil Rights/Liberties (including 1St Amendment and Due Process;
excluding criminal issues)

1 = for government

3 = for individual claiming civil rights violation

9 = mixed

International Economic/Govemment Regulation/International Law

1 = for economic upperdog, governmental regulation, no
environmental protection, for US. interest when against
foreign entity, or extraditing US. national to US. or keeping in
US.

3 = for economic underdog, against governmental regulation,
environmental protection, for interests of foreign entity against
the US, or extraditing US. national to foreign country or

keeping in foreign country
9 = mixed
Immigration

1 = for governmental regulation or action
3 = for individual

9 = mixed
War Powers
1 = for governmental activity (legitimizing war, military or

clandestine activity)
3 = against governmental activity
9 = mixed

Miscellaneous
1 = for US. government or assertion of federal power

139

3 = against federal government

9 = mixed
ISSUE2 Numeric coding of second most signiﬁcant issue
DIRECTZ Directionality of second issue
NATLSEC Speciﬁc claim of national security or national defense

1 = security claim upheld by court
3 = security claim denied by court

9 = mixed

JUDGE INFORMATION

CODEJ 1 Numeric coding of opinion author (from Songer database codes)

J1VOTE1 Directionality of ﬁrst judge on the ﬁrst issue (these values will
match the corresponding issue directionality codes if the judge
agrees (i.e. is in the majority) with the decision, dissenting judges
will have a directionality code opposite the issue directionality, and
judges concurring in part and dissenting in part will be coded as 9)

J lVOTEZ Directionality of ﬁrst judge on second issue

CODEJZ Numeric coding of second judge

J 2VOTE1 Directionality of second judge on ﬁrst issue

J 2VOTE2 Directionality of second judge on second issue

CODEJ 3 Numeric coding of third judge

J3VOTE1 Directionality of third judge on ﬁrst issue

J 3VOTE2 Directionality of third judge on second issue

CODEJ4 Numeric coding of fourth judge

J4VOTE1 Directionality of fourth judge on ﬁrst issue

J4VOTE2 Directionality of fourth judge on second issue

CODEJS Numeric coding of ﬁfth judge

J 5VOTE1 Directionality of ﬁfth judge on ﬁrst issue

J SVOTE2 Directionality of ﬁfth judge on second issue

CODEJ 6 Numeric coding of sixth judge

J 6VOTE1 Directionality of sixth judge on ﬁrst issue

J 6VOTE2 Directionality of sixth judge on second issue

CODEJ 7 Numeric coding of seventh judge

J 7VOTE1 Directionality of seventh judge on ﬁrst issue

J 7VOTE2 Directionality of seventh judge on second issue

CODEJ 8 Numeric coding of eighth judge

J 8VOTE1 Directionality of eighth judge on ﬁrst issue

140

J 8VOTE2 Directionality of eighth judge on second issue

CODEJ 9 Numeric coding of ninth judge
J 9VOTE1 Directionality of ninth judge on ﬁrst issue
J 9VOTE2 Directionality of ninth judge on second issue

141

APPENDIX TWO: LITIGANT CODES

Genera] Categog of Litigant (1"t digit of codes)
1 = federal government
2 = foreign government
3 = state or local government
4 = private business
5 = private organization or association
6 = US. Citizen (including naturalized aliens)
7 = foreign citizen (including legal and illegal aliens)
8 = other
0 = not ascertained

Federal Government (general category 1)

If 1 is selected for the general category then the following codes should be used for the
second digit:

1 = Executive Branch

2 = Legislative Branch

3 = Judicial Branch

4 = Speciﬁc Foreign Policy Agency

5 = Speciﬁc Domestic Policy Agency
6 = Miscellaneous Federal Government

If 1 is selected for the second digit (Executive Branch) then the following codes should
be used for the 3rd and 4th digits:

0] = The President of the United States

02 = Ofﬁce of the Presidency

03 = Department of Agriculture

04 = Department of Commerce

05 = Department of Defense (includes all branches of the military)
06 = Department of Education

07 = Department of Energy

08 = Department of Health, Education, and Welfare

09 = Department of Health and Human Services

10 = Department of Housing and Urban Development

11 = Department of Interior

12 = Department of Justice (does not include FBI; does include US. attorneys)
13 = Department of Labor (does not include OSHA)

14 = Post Ofﬁce Department

15 = Department of State (includes U.S. diplomats)

16 = Department of Transportation (includes NTSB)

17 = Department of the Treasury (does not include Secret Service)
18 = Department of Veteran Affairs

142

19 = other Executive Branch Department or individual
00 = executive branch not ascertained

If 2 is selected for the second digit (Legislative Branch) the following codes should be
used for the 3rd and 4th digits:

0] = House of Representatives

02 = Senate

03 = Members from both houses of Congress

04 = Congressional foreign policy oversight committee (armed services,
intelligence, foreign relations, etc)

05 = other Congressional committee (appropriations, judiciary, etc)

06 = ofﬁcer of Congress or other Congressional related actor

00 = legislative branch not ascertained

If 3 is selected for the second digit (Judicial Branch) then the following codes should be
used for the 3rd and 4th digits:

0] = Federal District Court (or judge)

02 = Federal Circuit Court of Appeals (or judge)
03 = Court of Claims (or judge)

04 = Tax Court (or judge)

05 = Bankruptcy Court (or judge)

06 = other court or judge

00 = judicial branch not ascertained

If 4 is selected for the second digit (Independent Foreign Policy Agency) then the
following codes should be used for the 3rd and 4th digits:

01 = Central Intelligence Agency

02 = Federal Bureau of Investigation

03 = National Reconnaissance Ofﬁce

04 = National Security Agency

05 = Nuclear Regulatory Commission

06 = Secret Service

07 = US. Agency for International Development
08 = US. Information Agency

09 = US. Intemationa] Trade Commission

10 = US. Trade and Development Agency

11 = Immigration and Naturalization Service (INS, includes border patrol)
12 = Subversive Activities Board

13 = other foreign policy agency

00 = foreign policy agency not ascertained

If 5 is selected for the second digit (Independent Domestic Policy Agency) then the
following codes should be used for the 3rd and 4th digits:

143

01 = Defense Nuclear Facilities Safety Board

02 = Environmental Protection Agency

03 = Federal Communications Commission

04 = Federal Emergency Management Agency

05 = Federal Energy Agency (Federal Power Commission)

06 = Federal Law Enforcement (includes DEA, ATF, Marshalls, Corrections)
07 = Federal Maritime Authority (Fed Maritime Commission)
08 = Federal Reserve

09 = Federal Trade Commission

10 = Interstate Commerce Commission

11 = NASA

12 = other domestic policy agency

00 = domestic policy agency not ascertained

If 6 is selected for the second digit (Miscellaneous Federal Government) then the
following codes should be used for the 3rd and 4th digits:

0] = DC in its corporate capacity

02 = legislative body for DC local government

03 = the United States in its corporate capacity (include criminal cases)
04 = unlisted federal corporation (TVA, FNMA (fannie mae))

00 = not ascertained

Foreign Government (general categog 2)
If 2 is selected as the ﬁrst digit then the following codes should be used for digits 2-4:

101 = foreign head of state (includes presidents and prime ministers)
102 = foreign ministers (cabinet level positions)

103 = foreign diplomats (ambassadors, envoys, etc)

104 = other foreign executive ofﬁcials

20] = foreign legislative bodies (includes members of parliaments)

301 = foreign judicial entities (includes foreign national courts and judges)
40] = UN Secretary-General

402 = UN General Assembly (includes foreign ambassadors to the UN)
403 = UN regulatory agency (Security Council, ECOSOC, etc.)

404 = International Court of Justice

405 = International Criminal Court

501 = other regional organizations (OAS, EU, etc.)
502 = other regional judicial entities (such as the Court of European Justice)

144

601 = miscellaneous international organization
000 = not ascertained

State or Local Government (general category 3]
If 3 is selected as the ﬁrst digit then the following codes should be used for digits 2-4:

101 = executive (i.e., governor, mayor, county executive)
102 = executive agency (police department)
103 = other state or local executive ofﬁcial

201 = legislature (state legislature, city council, etc.)
202 = educational body (school board, college board of trustees)
203 = other state or local legislative entity or ofﬁcial

301 = court or judge

302 = prison ofﬁcial

303 = prosecuting attorney

304 = other state or local judicial entity or ofﬁcial

401 = service bureaucracy (ﬁre dept, revenue board, human services, etc.)
402 = regulatory bureaucracy (transportation, market practices, zoning, etc.)
403 = other state or local bureaucracy

501 = state or local government in its corporate capacity
000 = state or local government not ascertained

Private Business (general categogy 4)

If 4 is selected as the ﬁrst digit then the following codes should be used for the second
digit:

1 = clearly local (individual or family owned)

2 = intermediate domestic (neither clearly local nor clearly national)

3 = clearly national (across the United States)

4 = intermediate foreign (neither clearly national nor clearly international)
5 = clearly international

O = not ascertained

After the second digit has been determined the following codes should be used for digits
3-4:

01 = agriculture

02 = mining

03 = construction
04 = manufacturing

145

05 = transportation and shipping

06 = trade — wholesale and retail

07 = ﬁnancial (includes insurance, banks, credit unions, etc.)
08 = utilities (includes nuclear power plants)

09 = medical (includes hospitals and doctors)

10 = legal

11 = media

12 = education

13 = entertainment

00 = other or not ascertained

Private Organization or Associgtion (general categogg 5)

If 5 is selected as the ﬁrst digit then the following codes should be used for digits 2-4:

101 = business or trade association

102 = professional association other than law or medicine
103 = legal association

104 = medical association

105 = union

106 = other business organization

201 = civic, social, or fratema] organization

202 = political interest group (ACLU, PAC ’3, lobby groups)
203 = political party

204 = educational organization

205 = religious organization

206 = non-proﬁt charitable organization

207 = other non-business organization

000 = not ascertained

US. Citizen (general category 6)

If 6 is selected as the ﬁrst digit then the following codes should be used for the second
digit:

1 = male (either indicated in opinion or assumed because of name)

2 = female (either indicated in opinion or assumed because of name)

9 = sex not ascertained

If 6 is selected as the ﬁrst digit then the following codes should be used for the third digit:

1 = caucasian (either indicated in opinion or assumed because of name)
2 = black (either indicated in opinion or assumed because of name)

146

3 = native american (either indicated in opinion or assumed because of name)
4 = asian (either indicated in opinion or assumed because of name)

5 = hispanic (either indicated in opinion or assmned because of name)

6 = arabic (either indicated in opinion or assumed because of name)

9 = race not ascertained

If 6 is selected as the ﬁrst digit then the following codes should be used for the fourth
digit:

1 = poor (speciﬁc indication in opinion, such as pro se petitioner)
2 = wealthy (speciﬁc indication in opinion)

3 = above poverty line but not clearly wealthy

9 = income not ascertained

Foreign Citizen (general categog 7)

If 7 is selected as the ﬁrst digit then the following codes should be used for the second
digit:

 

1 = male (either indicated in opinion or assumed because of name)
2 = female (either indicated in opinion or assumed because of name)
9 = sex not ascertained

If 7 is selected as the ﬁrst digit then the following codes should be used for the third digit:

1 = caucasian (either indicated in opinion or assumed because of name)

2 = black (either indicated in opinion or assumed because of name)

3 = native american (either indicated in opinion or assumed because of name)
4 = asian (either indicated in opinion or assumed because of name)

5 = hispanic (either indicated in opinion or assumed because of name)

6 = arabic (either indicated in opinion or assumed because of name)

9 = race not ascertained

If 7 is selected as the ﬁrst digit then the following codes should be used for the fourth
digit:

1 = poor (speciﬁc indication in opinion, such as pro se petitioner)
2 = wealthy (speciﬁc indication in opinion)

3 = above poverty line but not clearly wealthy

9 = income not ascertained

Other (general categogl 8)
If 8 is selected as the ﬁrst digit then the following codes should be used for digits 2-4:

 

101 = trustee in bankruptcy — individual

147

102 = trustee in bankruptcy — institution
103 = executor of estate — individual

104 = executor of estate — institution

105 = trustee of private trust —- individual
106 = trustee of private trust — institution
107 = other ﬁduciary or trustee

201 = indian tribe
202 = multi-state agency

000 = litigant characteristics not ascertained

148

APPENDIX THREE: ISSUE CODES

Issue codes are organized into 6 categories:
1. Criminal (including espionage)
2. Civil Rights and Liberties (including lSt Amendment and Due Process) for US.
citizens
3. International Economic/Government Regulation/International Law
4. Immigration
5. War Powers
6. Miscellaneous

Criminal Issues

10 = violent crimes (murder, rape, assault)

1] = robbery, burglary, larceny

12 = narcotics, alcohol related crimes

13 = espionage/treason

14 = crirrrinal violations of government regulations for business (including
violations of the Trading with the Enemy Act)

15 = morals charges (gambling, prostitution, obscenity)

16 = white collar crimes (embezzlement, fraud, bribery)

17 = sabotage

18 = other (including prisoner petitions after sentencing)

Civil Rights and Liberties (including 1" Amendment and Due Process)

20 = race/ gender discrimination (alleged by minority or female)

21 = reverse discrimination (alleged by caucasian or male)

22 = other discrimination claim

23 = freedom of speech, religion, press or association

24 = expression of political or social beliefs conﬂicting with regulation of
physical activity (demonstrations, parades, canvassing, picketing)

25 = challenges to war and military (includes conscientious objection)

26 = travel restrictions on US. citizens

27 = Freedom of Information Act (or claims involving rights of access)

28 = denial of hearing or notice

29 = other 1" amendment or due process claims (including loss of US.
citizenship)

International Economic/Government Regulation/International Law

30 = private commercial disputes (including private labor disputes)

31 = commercial regulation by government or government seizure of property

32 = government beneﬁt programs (e. g., war risk insurance, veterans beneﬁts, and
gov’t employment)

33 = environmental claims

149

34 = disputes over multilateral or bilateral treaties (excluding UN declarations)

35 = disputes with United Nations (or other international organizations)

36 = disputes with foreign governments over issues of sovereignty or diplomatic
immunity (includes restrictions of diplomatic activity)

37 = extradition of US. citizens from other countries (or to other countries)

38 = admiralty claims (include seamens’ wage disputes, maritime contracts,
charter contracts and tort claims)

39 = other international law (including indian law)

Immigration

40 = alien civil rights petitions

41 = deportation/extradition of aliens

42 = immigration laws (including immigration quotas)
43 = visas and travel restrictions of aliens

44 = other immigration issues

War Powers/Military

50 = opposition to war or military (which does not raise lSt Amendment
challenges)

51 = opposition to clandestine activity (include civil suits over military action)

52 = selective service or draft issues (which do not include lSt Amendment
challenges)

53 = nuclear, chemical, biological weapons (including regulation of plants or
factories)

54 = other weapons or equipment utilized by military

55 = other military service

56 = other war powers issues

Miscellaneous

60 = federalism
61 = other issues

150

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