Constraints and self-restraint gradually limit the courts.

Indeed, historical examples suggest the Court does at times recognize the limits of its independence and exercises self-restraint for fear of acting without public support and inflicting irreparable institutional damage. Notable examples include the Supreme Court’s reluctance to consider the constitutionality of antimiscegenation laws in the wake ofBrown v. Board of Education (Klarman 2004, 321) and its continued reluctance to address widespread prayer in public schools, despite the Court’s declaration that such practices violate the constitution. This point is made generally by Lasser (1988), who argues that the historical pattern has infact been one of judicial self-restraint precisely at those times when it is aware that the political situation is too perilous. For my purposes here, though, it is important not that the Court has at any point lost public support but rather that the justices behave in anticipation of a lack of public support. The historical record suggests the Court has at times been reluctant to forge ahead with its policy agenda for fear of acting outside of the broad contours of public support.

Thus, while justices have preferences over policy outcomes, they also have a preference for institutional legitimacy. Importantly, members of the Court believe that political attacks on the judiciary evince an erosion of public support and a decline in the Court’s institutional efficacy. For this reason, political attacks on the Court serve as signals of a lack of specific support for the Court, which in turn indicates that further judicial recalcitrance will not be tolerated and that the Court will not be able to effectively set policy. The mechanisms by which this may take place are several, but, primarily, continued judicial recalcitrance could lead to the impeachment of justices, the reluctance of lower court judges to heed Supreme Court precedent, or the refusal of elected officials to implement judicial decisions. For example, for fear of electoral reprisal, an elected official would find it in her interest to disregard a judicial decision perceived as illegitimate by the public.