Making Courts Matter: Politics and the Implementation of State Supreme Court Decisions

From Alexander Hamilton’s “least dangerous branch” to Gerald Rosenberg’s “hollow hope,” the ability of courts to bring about important policy change has long been the subject of controversy. Indeed, even as the success of the new institutionalism in the 1980s and 1990s has transformed “institutions matter” from a battle cry into an aphorism, the idea that courts matter still encounters a line of resistance that has long since fallen away from other branches of American government. If Rosenberg is extreme in his contention that “U.S. courts can almost never be effective producers of significant social reform,” his point of view is shared by other scholars who allow the courts only limited or indirect credit for important policy reforms or suggest that court decisions merely ratify the prevailing views of the governing elite. While the ranks of such revisionists appear to be growing, however, they remain opposed and outnumbered by those maintaining the traditional view of the courts as, in Justice Hugo Black’s words, “havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered,” or otherwise vulnerable to majority tyranny.

Whether the United States courts have, in fact, made important contributions to social change is ultimately an empirical question, not a matter of legal theory. Yet, even when examining the same facts on the ground, the two sides of this debate often reach opposing conclusions. Nowhere is this divergence more apparent than in the burgeoning literature evaluating the importance of Brown v Board of Education, where one can find scholars arguing that the Court made virtually no contribution to civil rights or school desegregation, others arguing that the case made a pivotal contribution in these areas and to United States history more generally, as well as those in between assigning the Court an important but more modest role.

Little progress is likely to be made in this area by continuing to rehash the same small set of “landmark” Supreme Court decisions. The focus on singular court decisions has yielded fascinating historical case studies but little in the way of generalizable empirical evidence on the role of courts in the policymaking process. This Article shifts the spotlight to state supreme courts, where the operation of fifty institutionally comparable policymaking processes provides an ideal laboratory for studying when and how court rulings affect outcomes. A movement to reform school funding has spread through the state court systems, producing dozens of similar cases over thirty-five years. Because court-based education funding reforms are both widespread and relatively homogenous in goals and methods, they provide an excellent setting in which to empirically explore the ability of courts to enact social change. Comparing changes in funding between states where the funding system was ruled unconstitutional with those where it was not, as well as exploiting variation in the timing of the decisions, allows us to make a statistical, rather than anecdotal, assessment of the courts’ impact.

Part II of this Article briefly introduces the legal framework and background of school-finance judgments (SFJs) and surveys the social science literature on SJF outcomes. Part III explains the data and statistical strategy employed by this Article. Parts IV through VI present the basic findings, evidence of a partisan impact on SFJ outcomes, and the robustness of our results. In sum, our analysis challenges the idea that courts are ineffectual in initiating policy change, while providing some of the first quantitative evidence that implementation is contingent on interactions between courts and other political institutions.