Divided Government and the Supreme Court

Abstract

One of the common explanations for the existence of divided government is that voters, preferring moderate public policy outcomes, split their tickets in voting for president and Congress. This argument presumes that divided government in fact results in more moderate policy outcomes than would be the case under unified government. To date, no one has examined the consequences of divided government for policymaking by the Supreme Court. Does appointment of Supreme Court justices under conditions of divided government produce a more moderate Court? The authors address this question in the context of civil rights and liberties cases, looking at liberal-conservative voting by justices between 1954 and 1989, inclusive. They test a model of Supreme Court decision making that incorporates a number of factors along with the existence of divided party government at the time of a justice's appointment. These factors include the number of years the individual justice has served on the Court, and the possible effects of the increased politicization of the Court and the judicial selection process since 1968. The authors find that appointment under divided party government is a significant predictor of moderation in civil rights and liberties decision making by the Court.