The United States Supreme Court and Criminal Cases, 1935–1976: Alternative Models of Agenda Building

Abstract

Perhaps the most important decisions that the United States Supreme Court makes consist of which sorts of issues it will entertain and how, when, and in what forms it will resolve them. Indeed, as Mr Justice Brandeis once remarked, the ‘most important thing [the Court does] is not doing’, i.e. winnowing cases. Yet, until quite recently, few studies focused on the politics of the agenda-building process on the Supreme Court. From the important researches of Tanenhaus and his associates and of Ulmer and his colleagues we know that under certain conditions and in certain cases the justices operate on the basis of a few ‘cues’ in decisions to grant or deny petitions for certiorari – the main mode of obtaining a hearing from the Court. And Ulmer has instructed us that in making choices on certiorari, ‘Supreme Court justices are predisposed to support underdogs and upperdogs disproportionately but, also, are motivated to hide any “bias” that may be at work in determining votes’. So, although we do know more about some segments of agenda building than before, investigations are still at a relatively early stage. Furthermore, few have treated the Supreme Court as an institution that operates across time as well as space or have accounted for variations in its behaviour across that temporal dimension.

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