REQUEST TO SUBMIT A PAPER FOR NONOFFICIAL PUBLICATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00423R000200170028-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 22
• Document Creation Date: January 4, 2017
• Document Release Date: April 21, 2008
• Sequence Number: 28
• Publication Date: May 14, 1984
• Content Type: MEMO

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14 May 198
MEMORANDUM FOR: Associate Deputy Director for
Intelligence
THROUGH:
Chief, Analytic Support Group
Chief, Analytic Methods Branch
FROM: IASG/AMB
SUBJECT: Request to Submit a Paper for Nonofficial
Publication
STAT
1. I requests permission to submit the
attached paper, "A Note on Substantive Access Doctrines in
the US Supreme Court: A Comparative Analysis of the
Warren and Burger Courts," for publication in Western
Politics Quarterly.
2. None of the material contained in the paper is
classified nor is any of it based on classified informa-
tion. conducted this research prior to STAT
accepting a position with the Agency. The paper deals
with a substantive political topic which is of interest to
many political scientists and has received attention in
the political science literature over the past few years.
3.
affiliation appears on this paper.
o Agency STAT
STAT
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SUBJECT: Request to Submit Paper for Nonofficial
Publication
I have reviewed the attached text, to the best of my
knowledge found it unclassified, and approve it for
publication.
STAT
Chief, Anal tic Support Group
/4kt 8?
Date
Associate',Deputy Director
Intelligence
174, ~/ ~
ate
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A NOTE ON.SUBSTANTIVE ACCESS DOCTRINES IN THE U.S. SUPREME COURT:
STAT
Washington, D.C.
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This research note is concerned with the utilization of substantive
access doctrines by the U.S. Supreme court between 1953 and 1979. The pur-
pose is to examine the regulation of access rules during the Warren and
Burger Courts, and to assess their relative support in expanding access-
ibility to the Supreme Court. An analysis of 261 access cases reveals that
the two Courts have demonstrated almost identical support for opening access
to the judiciary, but that the Burger Court has done so in a larger pro-
portion of cases. Similar patterns are discovered when controls for issue
type are employed, although, since the departure of Earl Warren the Court
has been slightly less inclined to expand proper forum requirements.
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A NOTE ON SUBSTANTIVE ACCESS DOCTRINES IN THE U.S. SUPREME COURT:
A COMPARATIVE ANALYSIS OF THE WARREN AND BURGER COURTS
The United States Supreme Court has two mechanisms at its disposal
to regulate cases appearing on its calendar. The first "gatekeeping"
power is derived from the Court's discretionary authority to accept cases
arising through writs of certiorari. The significance of this mechanism in
structuring the annual agenda was recognized by Tanenhaus and his colleagues
in their seminal work on cue theory (1963) and in several other studies
which have provided us with a better grasp of the somewhat mysterious
workings of the Court in reference to the "rule of four" (e.g., Ulmer et al.,
1972; Ulmer, 1972, 1978; Baum 1977; Teger and Kosinski, 1980; Provine,
1980). Although important, these annual conference decisions are rather
narrow in controlling access when considered in light of the Court's second
gatekeeping power. This second method of case control concerns the tech-
nical requirements of jurisdiction and justiciability subsumed under Article
III of the Constitution. These doctrinal rules serve to illuminate the
appropriate legal paths to the federal courts by defining who will have
access and determining which issues are deserving of adjudication.
The desire to better understand this second gatekeeping function
has generated an outpouring of literature focusing on those technical re-
quirements that define the avenues leading to judicial review. Many of
these efforts are found in legal journals (e.g., Berger, 1969; Davis, 1970;
Hoffman and McCutchen, 1976; Scharpf, 1966; Scott, 1973) but it appears
that the study of substantive access doctrines is gradually moving into the
interest domain of political science (Orren, 1976; Rathjen and Spaeth, 1979,
1983; Atkins and Taggart, 1982). A common theme in several of these analyses
is that the Supreme Court's willingness to expand accessibility is related
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to the liberal/conservative orientation of the Court and its members (e.g.,
Mendelson, 1976: 933; Wasby, 1976, ch. 2; Rathjen and Spaeth, 1979, 1983).
This is particularly evident in doctrinal comparsions of the Warren and
Burger Courts, where conjecture abounds regarding the Burger Court's re-
trenchment of access policies established under the liberal Warren Court.
Except for taxonomic studies, however, little research has been forth-
coming that systematically investigates how these two Courts have utilizied
access requirements. The one empirical study of access support by members
of the Warren and Burger Courts indicates that there are "more similarities
than differences" in how these two Courts have reacted to questions of
access (Atkins and Taggart, 1982: 377). Yet this study was primarily con-
cerned with individual support in expanding accessibility rather than
aggregate--court--support, and did not attempt to assess the reaction of
these two Courts to different rules of access.
The purpose of this research note is to examine how these two vastly
different Courts have regulated. access to the Supreme Court between 1953 and
1979. If there is indeed a relationship between a Court's propensity to
expand accessibility to the federal courts and its collective ideology, then
there should exist a detectible difference between the Warren and Burger
Court's in their support of access claims. The analysis will examine the
utilization and response of these two Courts to the following rules of
access: mootness; standing; ripeness; abstention; exhaustion; political
question; forum; jurisdiction; and diversity. Taken together, these stand-
ards are subsumed within the concepts of justiciability and jurisdiction.
Although there is less than unanimous agreement on the strict legal meaning
of each doctrine, these categories represent a fairly complete. and accurate
description of the major types of access rules that are invoked by the Court
in regulating caseflow.
4
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Some of the difficulty in identifying specific doctrines can be
avoided by the aggregation of related issues. While this technique has its
own limitations, such as assuming unidimensionality, much is to be gained
in a longitudinal framework where observations at equal intervals are re-
quired and cases are relatively infrequent. We have collapsed the rules of
access into three components representing jurisdiction, proper forum, and
proper party requirements. Within the category of jurisdiction are those
cases raising political questions, diversity issues and substantive juris-
dictional issues referring to the Court's ability to settle certain types
of disputes. The. second category, proper forum, includes those cases
raising issues of forum, abstention and exhaustion, and deals with the
authority of the Supreme Court to undertake review. The last area, proper.
party, is composed of those cases dealing with questions of standing,
mootness, and ripeness, and pertains to the importance and timeliness of
cases to receive judicial review.
Whether a substantive access rule was presented in a specific case
was determined by examining all formal opinions to assess if a question of
federal access was related to the disposition of the case. In order to
minimize coding errors, cases were only classified when the access issue was
clearly labelled by the Court and not by a disgruntled, dissenting justice.
In those cases where more than one issues of access was debated, the coding
was based on the relative amount of attention given to each doctrine. We
add the following qualifiers: (1) cases in which writs were dismissed as
improvidently granted were not examined; (2) cases with multiple docket
numbers were only counted once; (3) cases invoking original jurisdiction
were excluded; and (4) where the vote was indeterminate on the access issue
the case was not included in the analysis. This procedure produced a total
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of 261 access cases.I For each case individual votes on the access question
were coded using a dichotomous classification scheme of pro- and anti-access,
where a pro-vote by a justice is a vote to expand access to the Supreme
Court. Table 1 summarizes the number and types of access cases appearing in
our final data set.
( Table 1 about here )
Admittedly the subsequent analysis is not meant to replace the need
for investigations of these technical requirements in a less collective
'manner. To future litigants the implications of specific cases are of prime
concern. Notwithstanding this, a legal summarization of cases suggesting,
for example, that the degree of accessibility provided by the Warren Court
is being slowly attenuated by the Burger Court, cannot serve as a sub-
stitute for a more comprehensive method, utilizing a broader data base. In
order to more accurately determine if the Burger Court is "shutting the
door left ajar by the Warren Court" (Rathjen and Spaeth, 1979: 363) neces-
sitates that we move beyond specific cases and examine the overall patterns
displayed by the two Courts.
ACCESS ACTIVITY IN THE SUPREME COURT
Among students of the Supreme Court it is readily acknowledged that
the institution is accepting and resolving more disputes today than it did
thirty years ago. What is not understood are the relationships, if any, bet
ween the increasing demands being placed upon the Court, the utilization of
substantive access doctrines, and changes in formal leadership. Table 2
summarizes the distribution of access cases between 1953 and 1979 as (1) a
percentage of total access issues, and (2) a percentage of all cases settled
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by the Court. The former frequencies are useful in describing the amount of
attention given to access issues at any point in time, whereas the latter are
indicative of the relationship between caseload and the employment of access
rules. The time dimension is partitioned into equal lengths representing
two-term periods. 2
( Table 2 about here )
There is some variation in the amount of case time given to access
questions between 1953 and 1979, but in general the Court has not been overly
preoccupied with these issues. When the number of access cases are ex-
pressed as a percentage of all cases decided in each two-term period, the
largest proportion is found to be a moderate fourteen percent. Perhaps what
is more striking about this array is the slight, but abrupt increase in
attention given to access requirements corresponding with the arrival of
Chief Justice Burger in 1969. The mean percentage of case time devoted to
access doctrines almost doubled between the first eight time periods and
the remaining five. The t-test indicates that the means are significantly
different (t = 3.36) at the .01 level.3 The Court under Burger's leader-
nb+e
ship has been inclined to employ rules of access.
When expressing the number of access cases within each time period
as a percent of all access cases, we find that there has been a gradual, al-
most monotonic increase in the discussion of access doctrines over the
twenty-seven year period. The utilization of these requirements increases
at a slight rate during the Warren era and into the early Burger Court, but
subsequently declines or at least levels off during the remaining years.
The cumulative effect of this process is that in:elevgn.years the Burger
Court has been responsible for approximately sixty percent of all the access
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issues adjudicated during the last twenty-seven years. The Court under
Warren Burger has been more likely to employ threshold standards, and has
done so in a larger proportion of cases.
Do these differences between the Warren and Burger Courts still
appear if we control for types of access issues? Table 3 displays the dis-
tribution of access cases by the trichotomy of issue areas discussed pre-
viously. In this table access is expressed as the proportion of total
access cases in any two year period. While each category is composed of a
limited number of cases, the frequencies suggest that the Burger Court has
been more willing to deal with substantive access rules regardless of their
nature. This trend of greater attention is especially true of proper party
and proper forum requirements.
( Table 3 about here )
Table 4 is similar to Table 3 except that access is now measured as
a proportion of all cases. Three general impressions are obtained when
looking at the distributions presented in Table 4. First, there are no
appreciable differences between the Warren and Burger Courts in the amount
of time given to different types of access rules, although one could argue
that the Burger Court has been slightly more disposed to formally debate
issues of proper party and proper forum. Secondly, both courts are less in-
clined to use jurisdictional rules as compared to forum and party require-
ments. Lastly, a noticeable increase in the percentage of time devoted to
issues of proper forum can be detected accompanying the arrival of Warren
Burger in 1969. Yet the series appears to be returning to the level esta-
blished during Warren's membership on the Court.
( Table 4 about here )
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ACCESS SUPPORT BY THE WARREN AND BURGER COURTS
The formal discussion of access rules by the Court reveals little
about how its members collectively resolve these issues. In Table 5 we
cannot find a significant difference between how the two Courts rendered
decisions concerning limiting or expanding access. Where during Warren's
tenure the Court voted to expand accessibility in thirty-eight percent of
the cases in which these issues were raised, the Burger Court has been
supportive forty percent of the time. We do not find that the Burger
Court has exhibited a tendency to be more restrictive than the Warren
Court in granting access to the Supreme Court.
( Table 5 about here )
In Table 6 we adjusted the time periods so that they are at equal
eleven year lengths. Coincidently, the eleven year span for the Warren
Court represents a period during which it had a clear majority of liberal
justices.* Here again we cannot discern any difference between the two
'Courts with respect to pro- and anti-access decisions; both Courts have
displayed the same level of openness. At this level of aggregation it
thus appears as if the Burger Court has continued to maintain a degree of
accessibility inherited from its more liberal ancestor.
( Table 6 about here )
When looking at the column figures reported in Table 7 we find
evidence once again suggesting that the Burger Court has addressed a
greater proportion of access issues than its predecessor. However, most
importantly, in terms of all cases that expanded access to the Supreme
Court, the Burger Court voted in twice as many cases as the Court between
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1958 and 1968. But before one jumps to any conclusions, the Burger Court
has also produced twice as many decisions closing access to the courts.
( Table 7 .about here )
Similar breakdowns are presented in Table 8 for the three categories
of access issues. In terms of proper party requirements it appears that
while the two Courts were not drastically different in supporting access
claims, the Burger Court has been somewhat more willing to lessen proper
party standards, and has clearly decided a greater percentage of cases to
both enlarge and restrict access. The same type of occurrence is discovered
when looking at jurisdictional requirements--similar levels of support
coupled with a tremendous increase in the volume of decisions both in
opening and closing avenues to the courts.
( Table 8 about here )
The resolution of proper forum requirements provides an inter-
esting twist to the patterns already detected. There seems to be a dif-
ference in how the two Courts have reacted to these doctrines. The Burger
Court has tended to be more restrained in using the federal courts as a
forum to entertain legal disputes. Likewise, it is that area where the
Court showed the greatest increased attentiveness after the retirement of
Earl Warren (see Tables 3 and 4). These two pieces of information suggest
that the Burger Court's unwillingness to enlarge access in this area might
represent a reaction to the doctrinal posture developed by the more liberal
Warren Court.
SUMMARY AND CONCLUSION
We find little evidence to support the contention that the Burger
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Court has been more restrictive than the Warren Court with respect to ex-
panding accessibility to the Supreme Court. Overall, the two Courts show
very similar patterns of opening access to the judiciary. The significant
difference between the two is the propensity to formally debate rules of
access, where the Burger Court has been much more likely to entertain
such issues. Perhaps it is for this reason that the Burger Court has its
conservative image regarding access; after all, it has closed the "door"
in a substantial number of cases. Yet there is another side to this coin,
the Court under Warren Burger's leadership has also done its share of en-
larging pathways to the Supreme Court.
The only noticable difference discovered between the two Courts
concerns support for proper forum requirements. In this area the Warren
Court appears to have been more willing to exercise the Court's authority
to resolve legal conflicts. Conversely, the Burger Court has been more
inclined to abstain from cases brought before it, impose exhaustion re-
quirements, and compel litigants to seek remedies in other forums. In
`short, the Burger Court has been more restrained in expanding its power of
judicial review.
Substantive access issues encompass the types of cases the courts
will accept, who may apply to the courts, and which issues are germane.
Thus, they allow the Supreme Court not only to clear the path leading to
the courts but also to erect barriers to issues they choose not to con-
front. Indeed, these'technical requirements can represent either the first
thrust of an attack on a specific constitutional issue, or the first line
of defense from encountering a issue when uncertain of the legal, political,
or/social implications of the outcome.
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The almost intuitive notion that a liberal court will exhibit a
propensity to open access while a conservative court will seek to close
access is much too simplistic. It would be extremely disadvantageous for
a court to immediately close access and thereby surrender the opportunity
to examine recent legal-policy issues. Rather it would be to a court's
advantage to open the door, thus allowing them a greater volume of cases
with which to shape constitutional doctrine.
This seems to be what the Burger Court is presently doing in all
areas of access. Our data indicate that since the departure of Earl
Warren and the arrival of Warren Burger, the Court has provided the same
level of openness to the federal courts. More importantly, the Burger
Court has resolved a much greater volume of cases related to jurisdiction
and justiciability. It would seem that the Burger Court is wisely
"leaving the door wide open". When the Court feels it has accomplished
its specific goals, then perhaps it will begin to restrict accessibility
as it is doing in the area of proper forum.
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FOOTNOTES
1Opinions were taken from the Supreme Court Reporter for the 27 year period.
2The series is divided into thirteen, two-term periods beginning in 1953.
While there are some difficulties associated with this procedure, such
as being less able to examine the relationship between general membership
change and access, the advantages are quite attractive. In part, by break-
ing down the data this way it distributes the access cases more evenly,
and thereby facilitates our ability to discern patterns of access activity.
.An examination of natural courts -- periods of no membership change --
was also conducted and produced similar findings, although the examina-
tion required the use of averages.
3The 1979 term was not included in this, or any other calculations of the
4During this period, the Court was represented by Chief Justice Warren, and
Justices Brennen, Douglas, Fortas, Goldberg, and Marshall. It is clear
according to Schubert's analysis (1974) that these six possess a liberal
judicial ideology.
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FREQUENCY OF ACCESS ISSUES, 1953-1979
Access Issue
N
As a Percent of all
Access cases
As a Percent of
all cases*
proper forum
98
37.5%
2.98%
proper party
113
43.3%
3.44%
jurisdiction
50
19.2%
1.52%
TOTAL
261
100.0%
7.94%
*n= 3286. This is the total number of cases decided during the
27 year period. See text for a description of cases not included.
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DISTRIBUTION OF ACCESS CASES BY TWO-TERN PERIODS, 1953-1979
--------------------------------------------------------------------------------
e
Beginning In*
1953
1955
1957
1959
1961
1963
1965
1967
1969
1971
1973
1975
1977
1979
(I)Total Access Cases** (2)Total Number Cases N)
2.7
4.7
(148)
2.7
3.4
(204)
4.2
4.6
(238).
4.2
5.0
(218)
a
(4.5 )
(5.5c)
6.9
8.7
(207)
5.7
7.1
(212)
2.3
2.9
(210)
7.3
7.4
(256)
11.9.
13.9
(223)
16.5
13.6
(316)
11.1
9.8
(297)
(11.6b)
10.6d)
13.0
10.6
(320)
5.7
5.3
(281)
5.7
10.3
(146)
3286
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*Each period represents two tentis, except for the period starting with
the 1979 term.
**n=261
aMean for Warren Court.
bMean for'Burger Court. T-test for difference in means equals 4.413,
p < .01.
CMean for Warren Court.
dMean for Burger Court. T-test for difference in means equals 3.362
P < .01
riod Access Cases as a Percentage of
P
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DISTRIBUTION OF ACCESS CASES BY TWO
TERM PERIODS, CONTROLLING FOR ISSUE TYPE
Years
Party
Forum
Jurisdiction
53-54
2.7
2.0
4.0
55-56
0.0
5.1
4.0
57-58
4.4
5.1
2.0
59-60
3.5
4.1
6.0
61-62
5.3
7.1
10.0
63-64
4.4
5.1
10.0
65-66
0.0
5.1
2.0
67-68
9.7
5.1
6.0
69-70
8.0
16.3
12.0
71-72
15.9
18.4
14.0
73-74
16.8
8.2
4.0
75-76
15.0
11.2
12.0
77-78
7.1
5.1
4.0
79
7.1
2.0
10.0
PERCENTAGE OF CASELOAD DEVOTED TO ACCESS
BY TWO TERM PERIODS, CONTROLLING FOR ISSUE TYPE
Years
Party
Forum
Jurisdiction
53-54
2.0
1.4
1.4
55-56
0.0
2.5
1.0
57-58
2.1
2.1
.4
59-60
1.8
1.8
1.4
61-62
2.9
3.4
2.4
63-64
2.4
2.4
2.4
65-66
0.0
2.4
.5
67-68
4.3
2.0
1.2
69-70
4.0
7.2
2.7
71-72
5.7
5.7
2.2
73-74
6.4
2.7
.7
75-76
5.3
3.4
1.9
77-78
2.8
1.8
.7
79
5.5
1.4
-3.4
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PRO AND ANTI-ACCESS SUPPORT BY THE
WARREN AND BURGER COURTS, 1953-1979
Pro Anti
Support Support (n)
Warren
1953-1968
38% 62%
Burger
1969-1979 40% 60%. 168
PRO AND ANTI-ACCESS SUPPORT BY THE
WARREN AND BURGER COURTS, 1958-1979
Pro Anti
Support Support (n)
Warren
1958-1968
Burger
1969-1979 40% 60% 168
DISTRIBUTION OF PRO AND ANTI
ACCESS DECISIONS BY COURT*
Pro Anti
Support Support
Warren
1958-1968 31% 31%
Burger
1969-1979 69% 69%
(n) 97 146
*Difference in proportions significant at the p .01.
17
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SUPPORT FOR PROPER PARTY, JURISDICTIONAL, AND PROPER FORUM ACCESS CASES, 1958-1979
Proper Party Jurisdictional Proper Forum
pro anti (n) pro anti (n) pro* anti (n)
Warren
1958-1968 42% 58% (31) 35% 65% (17) 41% 59% (27)
Burger
1969-1979 49% 51% (80) 31% 69% (29) 32% 68% (59)
* * * * * *
pro anti pro anti pro anti
Warren
1958-1968 25% 31% 40% 35% 37% 29%
Burger
1969-1979 75% 69% 60% 65% 63% 71%
(n) (52) (59) (15) (31) (30) (56)
Difference of proportions significant at p < .01.
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REFERENCES
Atkins, B. and W. Taggart (1982). "Substantive Access Doctrine and
Conflict Management in the United States Supreme Court: Reflections
on Activism and Restraint." In Supreme Court Activism and Restraint,
eds. J. Halpern and C. Lamb, pp. 351-383. Lexington, MA: Lexington
Books.
Baum, L. (1977). "Policy Goals in Judicial Gatekeeping: A Proximity
Model of Discretionary Jurisdiction." American Journal of Political
Science 21 (February ): 13-35.
Berger, R. (1969). "Standing to Sue in Public Actions." Yale Law
Review 78 (March): 816-40.
Davis, K. (1970). "The Liberalized Law of Standing." University of
Chicago Law Review 37 (Spring): 450-73.
Hoffman, M. and J. McCutchen (1976). "Comment: Standing to Sue in
Federal Courts, The Elimination of Preliminary Threshold Standing
Inquiries." Tulane Law Review 51 (December): 119-39.
Mendelson, W. (1976). "Mr. Justice Douglas and Government by the
Judiciary." Journal of Politics 38 (November): 918-37.
Orren, K. (1976). "Standing to Sue: Interest Group Conflict in the
Federal Courts." American Political Science Review 70 (September):
723-41.
Provine, D. (1980). Case Selection in the United States Supreme Court.
Chicago: University of Chicago Press.
? Rathjen, G. and H. Spaeth (1979). "Access to the Federal Courts: An
Analysis of Burger Court Policy Making." American Journal of
Political Science 23 (May): 360-82.
(1983). "Denial of Access and Ideological Preferences:
An Analysis of the Voting Behavior of the Burger Court Justices, 1969-
1976." Western Political Quarterly 36 (March): 71-87.
Scharpf, F. (1966). "Judicial Review and the Political Question: A
Functional Analysis." Yale Law Review 75 (March): 517-97.
Schubert, G. (1974). The Judicial Mind Revisited. New York: Oxford
University Press.
Scott, K. (1973). "Standing in the Supreme Court: A Functional Analysis."
Harvard Law Review 86 (February): 645-92.
Tanenhaus, J. et al.,(1963). "The Supreme Court's Certiorari Jurisdiction:
Cue Theory." In Judicial Decision Making, ed G. Schubert, pp.111-32.
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