Governmental Litigants, Underdogs, and Civil Liberties: a Reassessment of a Trend in Supreme Court Decisionmaking

Over the past thirty years, several studies have examined the impact of litigant resources on decisional outcomes in Supreme Court litigation. Judicial scholars have found that litigant status does provide one explanation for the variation found in decisions to grant writs of certiorari (Ulmer 1981; Teger and Kosinski 1980; Songer 1979; Tanenhaus, et al. 1963). Additionally, a number of studies have found litigant status to be significantly related to outcomes on the merits in the lower courts (Sheehan and Songer 1989; Wheeler et. al. 1987; Wanner 1975; Owen 1971). Most of these studies draw on the theoretical premise proposed by Galanter (1975) which suggests that "repeat players" are more likely than "one shot" players to be successful in the courts. One particular type of litigant that has been consistently favored in the Supreme Court is the governmental litigant. Over a slightly longer period many studies have demonstrated the overwhelming success of federal agencies appearing before the Court (Sheehan 1989; Crowley 1987; Handberg 1979; Canon and Giles 1972; Tanenhaus 1960; Pritchett 1948). These studies indicate that federal agencies win over two-thirds of the cases in which they participate. Other studies have demonstrated the high rates of success for the Solicitor General when appearing as amicus curiae (Segal 1988; Segal and Reedy 1988; Puro 1981). Less attention has been given to the success of states and local governments in Supreme Court litigation. Early studies (Barnard 1955; Snyder 1956) indicate that state and local litigants are only slightly less successful than the federal government. A recent study suggests that states generally are not as successful as the federal government in criminal litigation. The authors do find considerable variation in support for different states (Epstein and O'Connor 1988).