Rethinking justices' and committees' strategies in Segal's separation of powers game

Abstract

In a recent paper Segal (1997) examines a Separation of Powers model in which the Supreme Court sets policy in a one-dimensional space, then Congress and the president have the opportunity to overturn it. His primary question is the extent to which justices have incentives to vote strategically – that is to vote against their sincere preferences (which ignore reactions by Congress and the president). Segal computes constraint sets, which are defined to be the policies that Congress and the president will not overturn. (Segal calls these sets “Pareto optimals”. However, because there are policies that Pareto-dominate these policies, we think constraint set is a more appropriate term. Later, Segal (1998) uses the term “set of irreversible decisions”.) He then uses these sets to examine empirically the strategic behavior of Justices. However, we note two mistakes in Segal’s solution to the game between the Court, Congress, and president. One involves the miscalculation of optimal strategies for gatekeeping committees. Another involves the miscalculation of optimal strategies for House-Senate conference committees.1