Detailed interviews with SCOTUS insiders confirm.

Judges and legal elites openly acknowledge this link between public will and judicial efficacy. For example, the Judicial Conference of the United States reported in 1995 that “[i]f the federal courts alienate the public and lose its support and participation, they cannot carry out their appropriate role.” Likewise, speaking at a conference on judicial independence, then-Chief Justice William Rehnquist (2003) noted that past preservation of the independence and integrity of the Court has been “dependent upon the public’s respect for the judiciary” and that “[t]he degree to which that independence will be preserved will depend again in some measure on the public’s respect for the judiciary.”

What is more, speaking with judicial “insiders” reveals further evidence of the importance of judicial legitimacy. The following quotes are excepts from interviews I conducted with Supreme Court justices and former law clerks.

Justice B: Certainly, in some of the most controversial areas, [public legitimacy] is in our minds. It is important that we act within the proper institutional constraints.

Justice C: It is important that the Court have institutional prestige in order to make decisions that the public may not like but will accept as legitimate.

Clerk 5: They are concerned with how they are perceived by the public. The justices are aware that they have no purse and no sword. They are very careful not to screw it up; they are very aware of how the public views the Court...The public is willing to accept decisions that are overwhelmingly unpopular because of faith in the Court.

Clerk 2: There is also a sense that the Court understands that the only way the Court’s decrees will be carried out is that there is a sense of legitimacy. They know that they don’t have an army or any purse –well, only a small purse.

Clerk 3: It is important that your output is treated with a presumption of credibility; it may be attacked, but it is important that your decisions have a presumption of credibility.

In other words, public confidence in the Supreme Court is much like a checking account – public confidence in the Court represents the account’s balance, and unpopular decisions represent debits against that balance. If too many debits are made, then the account will be overdrawn, and there will be no public support for the Court and no capacity for making further unpopular decisions. One strategy for the Court to protect its institutional legitimacy and diffuse support, then, is to avoid straying too far from majority will. This incentive may induce the Court to alter its decision in ways contemplated by standard separation-of-powers models or in other, more nuanced ways.7 The point is made perhaps most succinctly by Kevin McGuire and James Stimson (2004, 1019), who note

[A] Court that cares about its perceived legitimacy must rationally antic-ipate whether its preferred outcomes will be respected and faithfully followed by relevant publics. Consequently, a Court that strays too far from the broad boundaries imposed by public mood risks having its decisions rejected. Naturally, in individual cases, the justices can and do buck the trends of public sentiment. In the aggregate, however, popular opinion should still shape the broad contours of judicial policymaking.

NONINSTRUMENTAL MOTIVATIONS. Beyond protecting institutional legitimacy as a means to preserving its own power, the Court also has an interest in having a positive image among its audiences. For example, Baum (2007) argues that judges’ interest in being positively perceived by their primary audiences is an integral component of the judicial process that has been long overlooked by political scientists. To be sure, social psychologists have developed concepts such as self-presentation and impression management, which contend that individuals prefer to be positively evaluated, especially among their peers (Goffman 1959; Tetlock and Manstead 1985; Leary 1996; Schlencker and Pontari 2000; Leary 2007).

The justices are not unlike other people; they are clearly aware of how they are perceived by legal professionals as well as the public. One former clerk observed, “I think they do care about it [public approval]. That’s a reason for the tradition and ceremony of the Court...To some degree it affects their decision-making; they say that. They are careful not to reach too far,” to which she added, “these are political figures; I mean they are judicial figures, but they are public figures; like all, they are aware.”8 Another former clerk observed, “The Court does think about that issue, its public image...They take some pride and concern with their image among lawyers and legal academics and court watchers and that they maintain a reputation, both through them [the lawyers and academics and court watchers] and with the public at large.”9

Consider also these observations from Supreme Court justices and former clerks in response to the question, “To what extent, if at all, does the Court worry about maintaining a positive image and confidence among the public and legal professionals?”

Clerk 6: My sense is that the Court pays a great deal of attention to that, that they are very careful of not getting too far out ahead of the public in enforcing the Constitution.

Justice C: We are always worried about [losing public support]; nobody wants to bring the Court into disrepute.

Clerk 2: Yeah, I think so. Part of it is human nature – people want to be respected.

Justice A: We do worry about what the public thinks at some level, yes.

Clerk 1: Yes. I don’t think they perceive any great public disenchantment, but there is always that risk . . . They do take into account public views of the court and how they behave.

We see, then, that independent of an instrumental incentive to protect its legitimacy, the Court may also have an incentive to foster a positive image of the Court for noninstrumental reasons.

Judicial Perceptions about Court-Curbing

If the justices care about the Court’s legitimacy and public prestige –for either instrumental or noninstrumental reasons – how do they track trends in that support? One way in which they might do so is to pay attention to the political climate and gauge the judiciary’s standing with the public. Court-curbing is one source of elite-level behavior that may serve as an informative signal to the Court about its “reservoir of good will.” I do not assume that the justices believe that Court-curbing is a credible signal about its public support. Rather, in the theoretical analysis below, I ask under what conditions Court-curbing bills can be a credible signal of public discontent with the Court? The evidence does suggest, at the least, that the justices of the Supreme Court do believe that Court-curbing is driven by public discontent with the Court. In particular, the justices perceive Court-curbing as serving three purposes. Court-curbing may sometimes be an elite-level reaction to public opinion. Other times, Court-curbing may be an effort by political elites to influence public opinion by attacking the Court. Finally, Court-curbing may sometimes be in fact a credible threat by Congress to curtail the Court’s institutional powers.

court-curbing as a reflection of public opinion. In the justices’ view, one interpretation of Court-curbing is that it may be a reflection of waning public confidence in the judiciary. For example, “Justice C” commented, “The Court is pretty good at knowing how far it can go...Congress is better than we are, especially the House. They really have their finger on the pulse of the public.” To the extent that the Court believes that Court-curbing reflects public disenchantment with the institution, the Court will believe that Court-curbing indicates popular support for limiting or removing judicial power. Research demonstrates that public approval of the Court is highly contingent upon ideological congruence with the Court’s decisions.10 Considering the European Court of Justice, Caldeira and Gibson (1995, 358–9) note “a strong connection between approval or disapproval of decisions and diffuse sup-port for the Court; those who, on balance, favor the Court’s decisions will, over time, accord it high levels of diffuse support,” reflecting one clerk’s assessment that congressional attacks on the Court are “harmful in the sense that [they] usually [represent] disenchantment with some particular decision ...inevitably, that is a possible threat to the Court’s independence.”11 Indeed, Grosskopf and Mondak (1998, 650) note that reminding people of unpopular decisions makes them less likely to state that they have “confidence” in the Supreme Court, whereas Caldeira and Gibson (1992, 638) note that individuals who have no diffuse support or institutional loyalty for the Court will be willing to “accept, make, or countenance major changes in the fundamental attributes of how the high bench functions or fits into the U.S. constitutional system.” Moreover, to the extent that Court decisions affect people in particular locations, the local media tends to cover those decisions carefully, and public reaction to the decisions affects support for the Court (Hoekstra 2003). To the extent the public becomes disenchanted with the Court, one of the few –if not the most natural and efficient – recourses the public has is to contact representatives in Congress. As we will see below, members of Congress often treat these instances as opportunities to position-take on the Court by introducing Court-curbing bills, even if they do so without the intent of pursuing the legislation to enactment.

Interviews with congressional staffers strongly corroborate the claim that Court-curbing is often a response to pressure from constituents and represents the district’s response to the judiciary. For example, one staffer observed, “There is some constituency pressure. When the courts make a bad decision, we get constituents calling telling us to do something about these activist judges,”12 whereas another observed that “constituents called up a lot and asked what kind of atheist country do we live in,”13 after the Ninth Circuit Court of Appeals declared the Pledge of Allegiance unconstitutional. Thus, to the extent that Court-curbing reflects unfavorable public opinion toward the courts and that unfavorable opinion reflects popular support for limiting or removing judicial power, Court-curbing indicates an erosion of judicial legitimacy.

COURT-CURBING AS A DETERMINANT OF PUBLIC OPINION. Another view the justices sometimes have is that Court-curbing can potentially affect judicial legitimacy. These legislative proposals may influence public opinion and generate popular support for limiting or removing judicial power. In particular, congressional attacks on the Court politicize the Court in a way that the justices believe undermines the Court’s integrity and legitimacy. One former law clerk commented that congressional hos-utility “may undermine the Court in two ways: It could affect the Court by making the Court seem out of line with general preferences; the second way is that besides focusing attention on a particular issue, it also associates the Court in people’s minds with rough and tumble politics. Because they see the legislature legislating on the Court, it makes the Court seem political and susceptible to all of the criticism that goes on with respect to elected politicians.”14

Similarly, testifying before the American Bar Association’s Commission on Separation of Powers and Judicial Independence, United States District Judge Joseph H. Rodriguez of the District of New Jersey commented, “[w]hile principled criticism of judges and judicial decisions may serve a constructive purpose, partisan attacks on judges are a threat to judicial independence,” and observed, “public denunciations and statements of lack of confidence in the judiciary can have unintended consequences for the functioning of our society. Such statements may inevitably undermine public confidence that the exercise of judicial power is being applied properly and objectively.”15 In its final report, that committee similarly noted that, “[w]hen a judicial decision is criticized, ...the author of that decision is often prohibited by the rules of judicial ethics from entering the debate. As a consequence, the exchange of ideas and information on the case in question is less than open, which increases the risk that misinformation...will emerge, to the ultimate detriment of public confidence in the judiciary” (Commission on Separation of Powers and Judicial Independence 1997, 50).

Indeed, evidence from interviews with Supreme Court justices and former clerks clearly suggests that the Court believes that Court-curbing activity leads to lower public opinion about the Court and as a consequence delegitimizes the Court. During interviews, I asked, “Do you think that Court-curbing affects public perceptions about the Court?” Most of my interviewees responded affirmatively.

Justice A: People pay attention to what members [of Congress] say.

Justice B: For the people who do pay attention, if they are inclined to agree with the criticism, then it probably fortifies their dislike for the Court . . . Certainly, members of the bar and people who pay attention to the Court closely follow this.

Justice C: I find it curious that those who bemoan the Court at the same time push the Court into political issues . . . Once the public ceases to believe that the Court is not a political institution, they will no longer support the Court.

Clerk 2: I think it has got to have an effect. We all say we tune this stuff out, but we don’t. It’s just like advertising; we say we don’t listen to advertising, but we do. The drum beat is powerful . . . .The reason why the Court can decide a case like Brown, a decision that Congress could not have made at the time, is people still believe that the law has some independent legitimacy. Now, this is being undermined dramatically by attacks on the Court.

Clerk 6: I think there is a sense that if the Congress over responds it would be bad for the system...Another thing is a broad assault on judicial independence . . . I think that Court-curbing legislation is perceived as part of a broader phenomenon and the justices are really finding that quite troubling.

Clerk 1: Well, it is not totally inconsequential. It takes a lot to get through to the public; but to the extent the public is aware of it, it injects the Court into the political process; it makes it more subject to those kinds of attitudes.

Clerk 3: There is definitely a concern about the institutional response toward the Court.

Clerk 5: I think yes, which is why you saw [Justice] Sandra Day O’Connor speak out against it. When I say yes, there is not a unitary body. [Chief Justice] Rehnquist did not care when people attacked him personally. [Justice] Sandra Day O’Connor thought this was a threat to the institution.

Clerk 7: I do think it’s dangerous, because it [political attacks on the Court] chips away at the legitimacy of the court. Congress and politicians have much greater access and savvyness with the media; politicians can very often make it appear that all [the justices] care about is the result and not the rationale or reasoning behind it.

Finally, in Republican Party of Minnesota v. White,16 an important case concerning free speech and candidates for elected judicial offices, the Supreme Court acknowledged that political statements by judges can have a deleterious effect on judicial legitimacy and public confidence in the judiciary. In this vein, Court-curbing – to the extent that it is a politi-cization of the Court – runs the risk of undermining public confidence in the Court. Indeed, recent research suggests that attack ads focused on state judicial candidates lead to a diminution of judicial legitimacy (Gib-son 2008). Court-curbing, which can be considered the federal analogue of judicial campaign attack ads, may therefore be expected to have a similar effect on the Supreme Court.

This evidence provides the final, crucial piece of the theory of judicial preferences that I construct here. As “Clerk 2” notes, “Now, [public support for the Court] is being undermined dramatically by all of the attacks on the court. But there is still a level of resiliency of the law among the public.”17 Perhaps more important, the evidence from both interviews with judicial elites and from public statements by legal professionals suggests that damage to public confidence in the Court inhibits its capacity to decide cases independent of political pressure. This is the very definition of judicial independence offered in Chapter 1.

COURT-CURBING AS AN INSTITUTIONAL THREAT. Beyond its function as an intermediary between the public and the Court, a final interpretation the justices may have of Court-curbing bills is that they pose a risk of actually affecting the Court’s fundamental institutional powers. This is a function of Court-curbing on which I do not focus here but is nevertheless important to acknowledge. “Justice C” commented, for example, that “if the Court is perceived as a political institution, the constitutional checks will work to make the decisions look like the decisions that the public and majority want.”

As I described in Chapter 2, Court-curbing proposals generally aim to accomplish broad, substantive changes to the balance of power among governing institutions by shifting power away from the judiciary in favor of Congress, the executive, or the states. Although this legislation is rarely enacted, that fact does not in and of itself demonstrate that Court-curbing cannot achieve fundamental changes in the Court’s power.

For example, the Military Commissions Act of 2006, which created a system by which detainees in the Guantanamo Bay military camp are to be tried removes from the federal courts jurisdiction over habeas corpus claims by those detainees. This feature of the legislation is a clear response to the Supreme Court’s decision in Rasul v. Bush and represents a typical example of the use of Court-curbing legislation to directly undermine judicial power. More important, the Military Commissions Act significantly alters the Court’s power in these disputes and is a con-sequential shift of power away from the judiciary toward the executive. Thus, Court-curbing undermines judicial legitimacy and power because it poses the risk of directly undermining the Court’s institutional capacity. However, Court-curbing can undermine judicial power in other, indirect ways.

JUDICIAL AWARENESS OF COURT-CURBING. Implicit in the assumption that the Court perceives Court-curbing as a signal about its standing with the public is an additional assumption that the Court is aware of Court-curbing. For one might reasonably expect that the Court is sufficiently insulated that it does not pay attention to political attacks, especially Court-curbing attacks that rarely gain sufficiently broad support to pose any risk of enactment.

However, the Court is well aware of Court-curbing activity in Congress. In fact, precisely because the justices are concerned about their legitimacy and recognize that Court-curbing is an indicator of public discontent with the institution, they do remain aware of legislative hostility toward the Court. For example, in a speech delivered at the University of Nebraska College of Law, Justice Ruth Bader Ginsburg (2006) spoke about recent congressional attacks on the Court, citing several recent Court-curbing bills considered by Congress. Justice Ginsburg (2006, 7) noted that “in some political circles, it is fashionable to criticize and even threaten federal judges who decide cases without regard to what the ‘home crowd’ wants” and other justices have recently made similar public comments (O’Connor 2006b, a; Breyer 2006; Roberts 2006).

In addition, many of the papers of former justices contain memoranda circulated to the Conference18 summarizing legislation before Congress concerned with the Court, indicating that justices during previous eras similarly paid attention to legislative and political attacks on the Court.

For example, on February 11, 1975, Chief Justice Burger circulated to the Conference a memorandum, which read in part,

I read that some Senator had introduced a Bill, along the lines of one introduced by Senator Tydings six or seven years ago, to “disqualify” judges short of impeachment.

I have secured copies so as to keep you advised. If so vigorous an advocate as Senator Tydings could not gain support, it may be that this proposal will not attract support. However, I venture no predictions in light of the first weeks’ activities in the present Congress.

I have not read the bill but will do so before the next Conference and if anyone is so disposed we can discuss it.19

This memorandum, which is shown in Figure 3.1, demonstrates several points central to my argument. First, the memorandum demonstrates that the justices are aware of (and discuss) Court-curbing proposals in Congress. Second, it demonstrates that the justices remember Court-curbing bills and anti-Court movements in Congress. Third, the memorandum suggests that the justices worry about Court-curbing movements “attracting support” and becoming popular political causes celebres. Of course, it is possible that the justices were worried about the bill being enacted. However, it is fairly obvious that the bill, if enacted, would not pass constitutional muster. The bill in question sought to create a council on judicial tenure that would allow judges to be removed from the bench without being impeached. The Constitution clearly prescribes impeachment as the only mechanism for removing a judge. Thus, although the justices may have been worried the legislation would be enacted, it is doubtful they were worried that the enactment itself would lead to a diminution of their authority. Rather, it seems more likely they were worried about what increasing congressional support for such legislation would imply for their standing with the public.

Moreover, in personal interviews with justices and former clerks, Court insiders have explicitly acknowledged that the Court is aware of congressional hostility. “Clerk 2” observed that “Burger was very concerned about the Court’s legitimacy. I think he appreciated the way in which politicians were tearing down the Court,” while “Clerk 5” commented, “Oh yeah, they are clearly aware of it and they clearly talk about it inside of the Court. There are, though, different views. There are views that they should ignore it; there are views that they should deal with it and try to prevent it. Harry Blackmun read all of the hate mail that came to him. There are others who have screeners who remove all non-procedural mail.” Consider the following excerpts from personal inter-views during which I asked justices and former clerks about the Court’s awareness of specific legislative responses to Court decisions and Court-curbing proposals:

Justice B: We read the newspapers and see what is being said – probably more than most people do.

Clerk 8: Now that [Court-curbing legislation], the Court does pay attention to!