Judicial Agenda Setting

Ryan C. Black and Ryan J. Owens

Chapter published in 2012 in New Directions in Judicial Politics (Kevin T. McGuire, ed.) by Routledge Press.


We seek to explain the conditions under which justices set the Court's agenda. We make three interrelated arguments. First, we argue that justices make probabilistic decisions when setting the Court's agenda. They will cast their agenda votes based on the probability that the Court's eventual decision will result in a more favorable policy than currently exists. Second, we argue that legal considerations, such as lower court conflict, judicial review, and legal importance influence justices' agenda votes. Finally, and perhaps most importantly, we argue that policy and legal considerations interactively influence justices' agenda votes. When legal considerations and policy considerations point toward the same ends, a justice is freed up to follow his or her policy goals. But when the law points toward an outcome that the justice dislikes on policy grounds, she will often follow the law despite her policy misgivings. In short, we argue that policy and law jointly influence how justices set the Court's agenda with policy sometimes giving way to law.

Our results support our hypotheses. We find, first, that justices make predictions about likely policy outcomes and vote to grant review, in part, based on these predictions. More specifically, as a justice's probability of being made better off by the Court's merits decision increases, the justice becomes increasingly likely to vote to review the case. Second, we observe that legal considerations also influence whether justices review cases. The presence of important legal cues strongly drive up the probability a justice votes to review a case. And, finally, we find that policy and law interact, with law oftentimes conditioning justices' policy behavior. Even justices who disagree entirely with the expected policy outcome of a case will vote to review it.