The "New Federalism" and Prisoners' Rights: State Supreme Courts in Comparative Perspective

States Supreme Court has become a central concern of political scientists who are interested in judicial behavior. There is now a substantial body of literature showing that state and federal judges sometimes take advantage of well-established features of the judicial system in order to ignore, evade, or modify significant Supreme Court pronouncements.1 For example, by making crucial findings of fact that may distinguish a case under consideration from a Supreme Court holding or by dismissing Supreme Court language as mere dicta, lower court judges can reach decisions which are clearly at variance with those announced by the High Court. Thus, the Supreme Court, like any top level policymaker in a large organization, must contend with the problem of lower level officials who disagree with particular policies and who may take steps to have them rendered ineffective.2 This view acknowledges that despite the hierarchical nature of the American judicial system, both state and federal judges have wide latitude in implementing Supreme Court decisions. Although existent research provides considerable insight into the activities of lower courts, very few comparative analyses of state and federal judicial decision making have been performed. As Glendon Schubert pointed out several years ago, . .among contemporary political scientists, there is more discussion of the virtue of comparative analysis than there is demonstration of either the theoretical or empirical benefits to be derived from comparative work.3 This state of affairs has permitted several widely held notions about the contrasting behavior of state and federal judges to remain virtually unchallenged. For example, many legal scholars believe that Supreme Court decisions which uphold constitutional claims against the states are likely to be supported more strongly by federal judges than by state