An Alternative Perspective on Supreme Court Agenda Setting in a System of Shared Powers

Abstract

This study builds on existing empirical separation of powers work to determine whether legislative and executive preferences constrain the Supreme Court's agenda. Its contribution comes in the form of a different modeling perspective regarding how the location of the status quo conditionally impacts the separation of powers dynamic -- namely, whether a judicial improvements over the status quo will avoid legislative overrides. The data suggest two things. First, the location of the status quo vis-a-vis key pivots does not appear to factor in to the Court's agenda calculations. Regardless of whether the Court was improving the status quo policy or making it worse for Congress and the president, the Court does not appear to consider legislative overrides. Second, these data more broadly suggest that the Court unlikely plays the separation of powers game with Congress and the president.