Dodging Conflict: The Supreme Court Under Threat from Congress

Abstract

Although many scholars of judicial politics have looked for congressional constraint on the Supreme Court’s decisions, these studies have focused only on the Court’s decisions on the merits. In this paper, I change the terms of the debate from decisions on the merits to earlier decisions, arguing that if congressional constraint exists, it is more likely to be at preliminary stages. In an empirical study using data from the Burger Court, I find evidence that the Court takes congressional preferences into account when making these early decisions. Specifically, I look at the Supreme Court’s decision on whether to address the merits of a case once it has granted cert by examining its decision to rule on mootness, standing, or to dismiss the case entirely. My findings suggest that scholars may be looking in the wrong places for evidence of congressional constraint upon the Supreme Court.