Aff research is flawed---Congressional compliance is robust and any circumvention links to the case.

Participants in politics and even students of politics sometimes take positive responses for granted, assuming that when the Supreme Court acts, other people follow its lead. In contrast, scholars who study the consequences of the Court's decisions frequently emphasize limits on the Court's power to change government and society. Those limits sometimes are depicted as the result of courts' attributes as policy makers, especially the weaknesses that Alexander Hamilton depicted in Federalist 78. The limitations on the Court's power are both substantial and consequential, but it is unclear to what extent these limitations distinguish the Court from other policy makers. Arguably, an emphasis on the Court's weaknesses obscures some important realities about its role.

Changing Government

The Supreme Court does not act directly on society. Rather, its decisions are directed at other public policy makers, usually lower-court judges and administrators, in the form of legal rules that they are asked to implement. In assessing the Court's efficacy, then, the first question is the extent to which the Court can get those policy makers to carry out its decisions.

Concerted research on compliance with Supreme Court decisions was spurred by the Warren Court. Some of that Court's major interventions met highly visible resistance from judges and administrators, resistance that dispelled any assumption of near-automatic compliance. Most dramatic were the responses to Brown v. Board of Education (1954). Research documented what news reports indicated: Across the Deep South, school boards seldom acted voluntarily to desegregate their systems. Perhaps more surprising, most of the federal district judges who were called upon to enforce Brown evaded the Supreme Court's intent and allowed school districts to continue their noncompliance (Bartley 1969, Peltason 1971).

Studies found widespread noncompliance with other Warren Court interventions. A high proportion of the public schools that included prayers and Bible reading in the school day maintained those practices after the Court prohibited them in 1962 and 1963 (Reich 1968, Way 1968). State courts often balked at applying the Court's expansions of rights for criminal defendants (Canon 1974), and police violations of the Court's procedural rules were widespread (Milner 1971). Altogether, the research inspired by the Warren Court (see Wasby 1970) left an impression that the Supreme Court enjoyed limited success in shaping the choices of lower court judges and administrators. Startling as this impression was for those who had assumed a high level of compliance with the Court's decisions, it seemed to confirm the depiction of judicial weakness in Federalist 78.

Yet both this impression and what it suggests about the Court are misleading in two respects. First, the early research overstated the Court's implementation failures. For one thing, scholars emphasized failures more than successes. Was it more remarkable that so many schools maintained religious exercises prohibited by the Court or that so many others eliminated exercises that had strong public support? The absence of desegregation in the Deep South in the decade after Brown was noteworthy, but so was the gradual elimination of school segregation in the border states. Moreover, this research reflected a strong selection bias in that scholars were attracted to the study of decisions that had run into visible implementation problems. Later research that avoided this bias indicates that, at least at the federal level, judges and administrators respond more favorably to Supreme Court decisions in general than the early research suggested (Johnson 1987, Songer et al. 1994, Stidham & Carp 1982, Songer 1987, Songer & Sheehan 1990, Spriggs 1997; see Canon & Johnson 1999).

Second, the early research typically treated implementation of Supreme Court decisions as a unique phenomenon. Scholarship on imperfect hierarchy elsewhere in government (e.g., Kaufman 1960, Pressman & Wildavsky 1973) and in work organizations (e.g., Mechanic 1962, Crozier 1964) had little impact on the judicial research. As a consequence, judicial scholars seldom considered whether noncompliance with Supreme Court decisions resulted chiefly from universal imperfections in implementation rather than special weaknesses of courts. The first possibility has become even more credible with the accumulation of research on policy implementation (e.g., Lipsky 1980, Wilson 1989, Brehm & Gates 1997).

In recent years, some scholars with a strategic perspective have analyzed relationships between the Supreme Court and lower courts in formal terms, terms that facilitate comparison between implementation processes in the judiciary and hierarchical relationships in other settings (Kornhauser 1995, Hammond et al. 2001; see Brehm & Gates 1997, pp. 13–20). Especially important is collaborative work by Segal, Songer, and Cameron (Songer et al. 1994, 1995, Cameron et al. 2000), who have employed principal-agent theory to guide empirical studies of the relationship between the Supreme Court and federal courts of appeals.

Even in this new wave of research, however, there has been little systematic comparison between courts and other policy enactors. The natural comparison is between the Supreme Court and Congress, each of which acts to shape administrative policy. It is reasonable to posit that Congress does better in getting what it wants from administrators, because its powers (especially fiscal) and its capacity to monitor the bureaucracy are appreciably stronger. The sequences of events that overcame school segregation and racial barriers to voting in the Deep South support that hypothesis. But it remains essentially untested, in part because good tests are difficult to design. Thus, we still know little about the relative success of implementation for legislative and judicial policies.

Once we know more about the implementation of the Court's decisions in absolute and relative terms, the most important question might well be why implementation is as successful as it is. The Court's limited concrete powers would seem to aggravate the difficulties faced by all organizational leaders, so why do judges and administrators follow the Court's lead so frequently? Within the judiciary, part of the answer undoubtedly lies in selection and socialization processes that enhance agreement about legal policy and acceptance of hierarchical authority. Even the Court's limited powers may be sufficient to rein in administrators, especially in the era of broad legal mobilization that Epp has described: Groups that undertake litigation campaigns to achieve favorable precedents can also litigate against organizations that refuse to accept those precedents. Both judges and administrators may reduce their decision costs by using the Court's legal rules as a guide. In any event, the relationship between the Court and policy makers who implement its policies may be an especially good subject for studies to probe the forces that reduce centrifugal tendencies in hierarchies.