Court curbing is effective.

It has already been strongly and scientifically demonstrated that proposed Court-curbing legislation is an effective means by which Members of Congress may communicate with the Court and that the Court is very likely to hear fewer cases and to strike fewer laws when presented with an increase in Court-curbing legislation (Clark, 2009). However, it is the case that Congress seems to have very specific goals in mind while curbing the Court and that more mundane acts of the Court do not draw Congressional attention and Court-curbing legislation (Henschen, 1982). As a result of this knowledge, the Supreme Court often seeks to avoid hearing cases that are likely to draw unwanted and dangerous attention from Congress and cases that would force the Court into opposing public opinion (Goelzhauser, 2010; Hansford and Damore, 2000; Marshall, 1986; Franklin and Kosaki, 1989; Hoekstra, 2000). Carefully choosing the Court’s battles seems to largely – but not exclusively – result from the efforts of the Chief Justice and the Senior Associate Justice, who have some sway over what cases are heard and decided on, but most importantly how cases are decided and to what extent the Court’s majority opinion alters policy (Johnson, Spriggs, and Wahlbeck, 2005; Dorff and Brenner, 1992; O’Brien, 1985). In many cases, the Supreme Court bows to the preferences of Congress and decides cases in a manner that will not draw the ire of Congress or its members (Segal, 1997). Nevertheless, when the Court does choose to exert its influence over policy, it wields enormous, albeit highly concentrated and specific, power over a narrow policy issue (Flemming, Bohte, and Wood, 1997). Although Congress is typically considered the more “powerful” institution, the Supreme Court is not without influence or authority and is a very real threat to Congressional policy preferences.

It is well established that Congress holds great influence over the Supreme Court and that the Supreme Court acts strategically to prevent Congressional Court-curbing (Clark, 2009). What remains a mystery, however, is leads Members of Congress to propose Court-curbing legislation, as the academic literature is largely silent on this matter. This paper seeks to answer this question and proposes that Court-curbing legislation is a result of ideological divergences between members of Congress and the Court in addition to a Congressional response to an inherent and intentional institutional rivalry.