Ideology, Status, and The Differential Success of Direct Parties Before the Supreme Court

Abstract

A substantial literature on lower federal courts and state courts suggests that the “haves” usually come out ahead in litigation because they possess superior resources for it and they reap advantages from their repeat player status. We investigate the success of 10 categories of litigants before the Warren, Burger, and Rehnquist Courts to determine whether the resources or experience of litigants has effects on Supreme Court outcomes paralleling those found in the courts below. While different categories of litigants are found to have very different rates of success, those differences do not consistently favor litigants with greater resources. A time series analysis of the success of different categories of litigants over the 36 years studied suggests that the changing ideological complexion of the Court has a greater impact on the success of litigants than differences among litigants in resources and experience.

Explaining Litigant Success in the High Court of Australia

“…Smyth (2001) argued that the absence of a document protecting individual rights accounted in some part for his findings that 'repeat players' did not have an advantage in the High Court. However, while McCormick (1993) found support for a 'repeat player' hypothesis in Canada, Sheehan, Mishler and Songer (1992) did not find support in the US Supreme Court. Though the presence of a rights document may affect the agenda of a court, it should not affect the Galanter premise of party capability.…”

“…Sheehan, Mishler and Songer (1992) examined the United States Supreme Court across a 36-year period and found little evidence that 'repeat players' had an advantage. The pattern of success identified by Sheehan, Mishler and Songer was more consistent with changes in the ideology of the Court.…”

Litigant participation and success in water rights cases in the Western States

“…It has also been applied to appellate court studies. Studies of the U.S. Supreme Court and U.S. Courts of Appeals consistently demonstrate that the federal government is the most successful party (Collins & Martinek, 2010;Hettinger & Lindquist, 2012;Sheehan, Mishler, & Songer, 1992;Songer, Sheehan, & Haire, 1999). Some studies find that businesses enjoy higher levels of success than individuals Songer et al, 1999) while others do not (Collins & Martinek, 2010).…”

American indians in court: the Burger and Rehnquist years

“…The U.S. Supreme Court's propensity to support the appellant, called the "error correcting strategy," is well chronicled (Baum, 1976(Baum, , 1977(Baum, , 1979Epstein and O'Connor, 1988;George and Epstein, 1992;Salokar, 1992;Songer, 1979;Sheehan et al, 1992;Wasby, 1993). Many argue that the justices take cases when they "seek to 'correct errors' in the lower courts by voting to grant a hearing whenever a lower-court decision departed significantly from their most preferred doctrinal position" (Baum, 1977, p. 14).…”