Political Opportunism, Position Taking, and Court-curbing Legislation

Abstract

ABSTRACTAlthough there is extensive scholarship on court-curbing efforts directed at the U.S. Supreme Court, much less is known about bills targeting the lower federal courts. This article argues that members of Congress also engage in position taking with respect to the U.S. Courts of Appeals, by proposing legislation to divide up the Ninth Circuit. Over seven decades, no other circuit has attracted as much court-curbing legislation as the Ninth Circuit, and yet no bill has succeeded. What accounts for this persistent focus on one court? We argue that bill sponsors are motivated primarily by electoral considerations and capitalize on the perception of the Ninth Circuit as an extremely liberal court. Using an original dataset of all bills to split the Ninth Circuit, we find that sponsorship of splitting bills is linked to legislator party, ideology, and state public mood relative to California, and that only conservative, Republican members of Congress are responsive to performance-related indicators, such as caseload increases and Supreme Court oversight. The results suggest that our current understanding of court curbing as it applies to the Supreme Court can be extended to new judicial contexts.