SUPREME COURT DECISIONS, IMPACT OF

The Supreme Court's decisions have regularly embroiled it in controversy. Its rulings have considerable impact. In its early years, the Court, over strenuous objection from the states, shaped our federal system and helped establish the national government's supremacy. The Court also had substantial effects on the economy, aiding in the creation of an American economic common market and providing opportunities for the private sector to develop. The Court's major effects on federalism and the economy subsided after the 1930s. However, its effect on civil rights, visible earlier with respect to slavery and its emasculation of reconstruction civil rights statutes, again became apparent as questions such as school desegregation came to the fore in the 1950s.

The Supreme Court's impact includes ways in which federal and state agencies and lower federal and state courts carry out the Court's decisions, but it also includes the ways in which the agencies and courts delay, circumvent, misunderstand, and erode them. It includes the response to decisions by different "populations"—those who explain or elaborate its rulings, those supposed to apply or implement them, those for whom the rulings are intended, and the general population. Because the Court, "the least dangerous branch," lacks the capacity to enforce its rulings directly, assistance from those at whom a ruling is directed or from others (legislatures, executive agencies, courts) is required. The Court is now recognized to be a political actor, but one must abandon the tacit assumption held by earlier scholars that Supreme Court decisions are self-executing and recognize that the law is what the judges say it is only after all others have had their say.

Impact and compliance are not identical but are related. Compliance, the process by which individuals accept a decision prior to its impact or effect, cannot occur unless a person knows of the ruling and is required to take or abstain from a certain action. Compliance means an individual's intentionally conforming behavior to the ruling's dictates, that is, doing what the decision commands because of the ruling. Because noncompliance, or refusal to obey, occurs relatively seldom despite the attention it receives, it is important to pay heed to implementation of decisions, the process by which they are put into effect. Short-run resistance may blend into longer-run obedience, as resulted in the aftermath of the reapportionment decisions.

Impact includes all effects, direct and indirect, resulting from a ruling of the Court, regardless of whether those affected knew about the decision; it includes the results of rulings permitting but not requiring the adoption of certain policies. When effects of a ruling indirectly induce behavior congruent with the ruling, that behavior is better viewed as impact than as compliance. Impact encompasses actions neither directly defiant nor clearly obedient, such as attempts at evasion coupled with technical obedience and efforts to anticipate the Court's decisions ("anticipatory compliance"). Impact also includes both short-term and long-run consequences of a decision, for example, massive resistance to school desegregation rulings and the rulings' arguable contribution to "white flight" to the suburbs. There will also be situations in which no response occurs, that is, where there is an absence of obvious impact.

The Supreme Court's effect on the President has generally been one of support and reinforcement. The Court has been least willing to overturn his acts in time of war, when presidential resistance to Court decisions would be most likely. Although limiting somewhat the President's authority to remove certain government employees, the Court, since the new deal, has sustained delegations of power to the President and the executive branch and has generally been deferential to the regulatory commissions since world war ii. Confrontations between Court and President have been relatively infrequent; when the Court invalidates policies the President had espoused, for example, wiretapping, it is not attacking the presidency as an institution. Presidents may have been reluctant to assist in enforcing the Court's decisions, but direct defiance is rare indeed. Both President harry s. truman and President richard m. nixon complied with orders when their actions (seizure of the steel mills and withholding of tapes) were ruled improper. In those situations, as with impoundment of appropriated funds, the Court insisted that the President follow the law as interpreted by the courts rather than determine for himself whether he should be subject to it; in the case of the steel seizure, the Court insisted that he follow a course of action legislated by Congress.

The Court has had considerable impact on Congress's internal processes—its authority to exclude members, legislative investigations, and the contempt power. Congressional reaction to the Court's decisions has been manifested in a number of ways. After the Court has engaged in statutory interpretation or, less frequently, has invalidated statutes for vagueness, Congress has often rewritten or reenacted the laws to reestablish its "legislative intent," in effect establishing a continuing dialogue between Court and Congress. Congress has also shown negative reaction to the Court's ruling through proposals to eliminate appellate jurisdiction in particular classes of cases, for example, internal security, abortions, and school prayer, but these attempts have been less frequent and far less successful than those to rewrite statutes. Efforts to overturn the Court's rulings have also resulted in introduction of numerous proposals to amend the Constitution, but most such proposals die. Only a few—the eleventh amendment, civil war amendments, sixteenth amendment, and twentysixth amendment—have been both submitted and ratified.

The impact of the Supreme Court's decisions extends well beyond the other branches of the national government. Controversial Supreme Court rulings have affected public opinion and have produced divided editorial reaction on a wide range of decisions. Changes in the public's feelings of trust or confidence in the Court have paralleled changes in feeling about the presidency and Congress but generally have been somewhat more positive. Such ratings have changed rapidly, but shifts in the Court's doctrine on controversial topics (such as criminal procedure) inthe direction of public opinion usually are not immediately reflected in changed public opinion ratings.

The public generally supports the Court's work. Those giving the Court general (or "diffuse") support, however, outnumber those giving the Court specific support (for particular rulings) by a large ratio. The proportion of the public that feels the Court may legitimately produce structural political change is quite small. Acquiescence in the Court's rulings, which helps produce compliance, has been more common than active approval of the decisions.

The public also has little information about the Court. Even many controversial decisions fail to penetrate the general public's consciousness. The greater the knowledge, however, the greater the dis approval, but those reporting negative views on specific cases outnumber those whose general view of the Court is negative. Those with negative views also tend to hold them more intensely, but seldom would most members of the public do more than write letters of protest; demonstrations and other overt protest are atypical. Negative views about the Court are usually accounted for by reactions to the few specific decisions that catch the attention of large proportions of the public. Those salient decisions change with considerable rapidity, shifting in the 1960s from civil rights and school prayer to criminal procedure.

The Supreme Court's impact on the states and local communities is varied. Effectuating many decisions involves little controversy, and implementation may be prompt and complete, particularly if actions of only a few public officials are necessary. Other rulings, such as those on school desegregation, school prayer, and criminal procedure, produce a disproportionate amount both of resistance or attempts to evade and of critical rhetoric—rhetoric at times not matched by reality. Despite claims that the warnings required by miranda v. arizona (1966) would have a negative impact on police work, suspects and defendants often talk to police after being "read their rights." However, even these criticized rulings have definite impacts, for example, more professional police work as a result of criminal procedure rulings. Although opponents of the rule that improperly seized evidence should be excluded (the exclusionary rule of mapp v. ohio, 1961) have claimed that the rule does not deter illegal seizures and is too costly because guilty defendants are set free, some studies have suggested that the rule might be having some of its intended effect. At least in some cities, few cases were dropped after motions to suppress evidence and a higher proportion of searches conducted after the rule was promulgated were constitutional.

If people are to comply with Supreme Court rulings or if the rulings are to have an impact, they must be communicated to those expected to implement or adhere to them. One cannot, however, assume that effective communication takes place. A ruling may have to be transmitted through several levels, at each of which distortion can be introduced, before reaching its ultimate audience. Lawyers may be accustomed to easy access to the Court's published opinions, but many others, such as police or school officials, often do not receive the opinions or have such direct access to them and must therefore rely on other means of communication through which to learn of them.

The mass media, with the exception of a few newspapers, provide only sketchy information about the Court's decisions. Specialized media, for example, trade publications, provide only erratic coverage even of decisions relevant to the groups for which they are published. Most newspapers and radio and television stations must rely on the wire services for information about Supreme Court rulings. Disproportionate nationwide emphasis is given to decisions the wire services emphasize, with little or no coverage given to other rulings. The media also have different patterns of coverage ("profiles"). Newspapers, for example, give more attention to postdecision events, while the wire services and television pay more attention to cases before they are decided. All the media, however, generally convey much information about immediate reaction to, or impact of, decisions instead of emphasizing the content of, or rationale for, the Court's rulings.

The lower courts do not constitute a bureaucratic structure through which decisions are fully communicated downward. Lawyers thus become particularly important in transmitting the Court's rulings, as they are in transmitting any law. Lower court judges who do not routinely follow the Court's decisions may find out about them only if lawyers arguing cases cite the decisions, which they do not always do accurately. Lawyers, either individually or through their bar associations, do little to inform the general public about developments in the law. Some state attorneys general and local prosecutors undertake to inform state and local officials of recent rulings affecting their work. The failure of these officials to do so in most locations has led some local agencies, which can afford to do so, to hire their own lawyers, for example, police department "police legal advisers," to monitor the Court's rulings, provide appropriate information to the agency, and arrange for implementation.

Training programs—effective because they combine printed materials with oral presentation—can be particularly important in the transmission of rulings. They are especially necessary because the educational system has generally done little to educate students, later to be members of the general public, about the Court's functioning or its rulings. Training programs are, however, not available to all those expected to be cognizant or familiar with the Court's rulings. Many members of some important occupational groups such as the police do not receive adequate legal training about the Court's decisions. Even if initially well-trained, they are less likely to receive adequate follow-up through in-service training.

The impact of the Court's decisions is, of course, affected by far more than deficiencies and distortions in the lengthy, often convoluted process by which the decisions are communicated. Numerous other factors affect both the communication process, thus indirectly affecting impact, and impact itself. One is the legitimacy attributed to the Court and its work. If a particular audience, for example, the police during the warren court's "criminal procedure revolution," feels that the Court is not acting fairly or lacks appropriate information on which to base its decisions, that audience will heed the Court's word less carefully even when the opinions are fully communicated. Characteristics of the Court's rulings, such as their relative unanimity and relative clarity or ambiguity, are also important, as both unanimity and clarity are thought to produce greater compliance. In new and sensitive areas of policy such as civil rights and criminal procedure, the lower courts can exercise power over the Supreme Court by their resistance. Rulings by lower court judges applying and extending (or narrowing) the Court's decisions are particularly important in such situations and in those where gaps in doctrinal development—a result of case-by-case development of the law—leave unanswered questions. In many, perhaps most, areas of the law, however, lower court judges enforce Supreme Court rulings because those rulings are a matter of relative personal indifference for the judges, because they have been socialized to follow those rulings, and because they wish to avoid being reversed.

Whether someone follows up a decision, who that "someone" is, and how they act, also affect a decision's impact. Elites' support for a decision may be able to calm negative public reaction. The likelihood that desegregation would be accepted in either the short or long run was decreased because southern elites were not favorably disposed toward either the result of brown v. board of education (1954) or the Court's opinion. Because most rulings of the Court are not self-enforcing, follow-up by government agencies is often crucial for effective implementation. Officials not committed to the values in the Court's rulings are less likely to be assiduous in their follow-up; thus the attitudes of individual decision makers, particularly those in key policymaking or enforcement positions, are of considerable importance.

The situation into which a Supreme Court ruling is "injected"—whether in a crisis or in normal times—also affects the ruling's impact. A local community's belief system and its past history both are part of that situation. So are community pressures on the individuals expected to carry out the Court's dictates. Often a wide variety of enforcement mechanisms must be used before compliance is achieved. Incentive systems in organizations can lead individuals either to follow the Court's rulings or to continue existing practices. Because organizations have considerable interest in maintaining such practices, externally imposed penalties may be insufficient to produce required change.

To overcome problems of communicating Supreme Court rulings so that they reach the appropriate audience might seem insuperable. The Court's rulings are, however, often complied with and do have widespread impact. Were it otherwise, we should not hear so much about the problems occurring in particularly sensitive areas of the law such as civil rights and civil liberties. The difficulties in implementing the Court's decisions to achieve their greatest impact should remind us that, as an active policymaker, the Supreme Court faces many of the same problems faced by other policymaking institutions.

Stephen L. Wasby
(1986)

Bibliography

Becker, Theodore L. and Feeley, Malcolm, eds. 1973 The Impact of Supreme Court Decisions: Empirical Studies, 2nd ed. New York: Oxford University Press.

Johnson, Charles A. and Canon, Bradley C. 1984 Judicial Policies: Implementation and Impact. Washington D.C.: Congressional Quarterly Press.

Krislov, Samuel, ed. 1972 Compliance and the Law: A Multidisciplinary Approach. Beverly Hills, Calif.: Sage Publications.

Wasby, Stephen L. 1970 The Impact of the United States Supreme Court: Some Perspectives. Homewood, Ill.: Dorsey Press.