Curbing solves---the Court will listen to Congress.

This debate as to why the Court would respond to Court-curbing bills, in addition to findings that judicial deference to congressional preferences does occur following periods of Court-curbing (Nagel 1965; Rosenberg 1992), has become the foundation for Clark’s (2009, 2011) conditional self-restraint model. His theory relies on many of the same assumptions underlying separation of powers research. In particular, Clark posits that the Court’s institutional legitimacy is diminished when it hands down unpopular decisions that lead to congressional criticism or policy-based responses. While most changes evidenced in judicial decision making are considered responses to the fact that Congress has and could reverse rulings or enact Courtcurbing legislation, Clark’s model contends that challenging the Court’s institutional legitimacy is enough to elicit a change in judicial behavior.

For Clark (2009, 2011), the sponsorship of Court-curbing legislation under certain conditions serves as a credible signal of waning institutional legitimacy and public support that the Court responds to by making decisions that reflect current congressional preferences. To make this theoretical connection, the model makes assumptions about the preferences of both branches. Beginning with Congress, members use Court-curbing legislation as a position-taking endeavor in their constant pursuit for re-election because the bills allow them to publicize their disagreement with a decision and show that they are actively representing constituent concerns. It is in the best interest of members of Congress to represent their constituents’ interests sincerely, so in most instances, the justices view the introduction of Court-curbing legislation as a reliable signal of the Court’s diminished institutional legitimacy and public support.