Court curbing fails – no congressional incentive

Recent work has provided many insights on the role of policy primacy in shaping the Court’s strategic behavior in the separation of powers context. Yet, in our view, the literature’s focus on Pareto-optima predictions has largely pushed aside the Court’s concern for defending and/or promoting its institutional legitimacy. Models of judicial decision making should move beyond the role of policy preferences and legal factors to probe more deeply into strategic rationales explaining the Court’s behavior. Segal, Westerland, and Lindquist (2011) make a notable contribution in this regard by examining the ways in which Congress may constrain the Court’s decision making in constitutional cases. Assessing those instances where the Court exercises judicial review over federal legislation, these authors find that, while the Court is not affected by the likelihood of a given decision being legislatively overridden, its general propensity to invalidate legislation when it is ideologically distant from Congress. Moreover, their analysis finds very limited evidence that Court-curbing actions influence the Court’s propensity to invalidate federal laws. They conclude that the Court responds to general political conditions rather than specific policy outcomes because the driving motivation for decisions in constitutional cases hinges on the Court’s concern for what they term “institutional maintenance.” Similarly, Clark (2009) demonstrates that the effect of Court-curbing actions on constitutional decisions is conditional. In particular, he shows the effects of Court-curbing attacks on the Court’s decisions are attenuated when the public is more supportive of the Court and also when ideological dissimilarity is greatest between Congress and the Court. Accordingly, Clark argues that the conditional effects of political attacks reflect the Court’s concern with institutional legitimacy over any concern for specific policy enactment. Certainly, these studies make major contributions toward understanding the full scope of the Court’s strategic behavior. However, both analyses leave out potentially valuable comparative evidence from statutory cases. This is important because of the expectation that for statutory decisions, the Court’s motivation is driven by policy costs—the concern for specific policies being overridden. Here, we consider the possibility that congressional Court-curbing efforts and other theoretically key factors may have implications for statutory cases as well. By comparing the Court’s decisions in both constitutional and statutory contexts, we are able to gain leverage on whether institutional maintenance is unique to the former as well as a more complete view of the Court’s motivation(s) in the strategic context of the separation of powers. Our analysis also differs from previous work in that we seek to explain ideological variation in the Court’s decision making as opposed to whether (Segal, Westerland, and Lindquist 2011) or to what extent (Clark 2009) the Court invalidates federal legislation. Because we restrict ourselves to jurisdictional measures in operationalizing Court-curbing action, our analysis can test directional predictions concerning the influence of such congressional efforts in shaping the ideological tenor of the Court’s decisions. This also permits us to examine all the Court’s constitutional decisions, including highly polarizing cases such as Mapp v. Ohio (1961), Miranda v. Arizona (1966), and Roe v. Wade (1973), as opposed to the subset of constitutional instances that involve judicial review of federal law.