The political economy of supreme court constitutional decisions: The case of Roosevelt's court-packing plan

Abstract

U.S. Supreme Court constitutional decisions are perhaps the most powerful way of designing public policy. While a president may veto congressional legislation, or Congress may reverse a Supreme Court statutory decision, the reversal of a Supreme Court constitutional decision requires an explicit constitutional amendment. Constitutional amendments have to be ratified by state legislatures and can be initiated either by Congress or by the state legislatures. Until this date, however, all amendments to the U.S. Constitution have been initiated by Congress. Article V of the Constitution requires that constitutional amendments initiated by Congress have the support of two-thirds of each house and that to be ratified, amendments must have the support of at least three-fourths of the state legislatures.’ Constitutional amendments, then, demand a substantial political consensus and, consequently, are not easily implemented.? The difficulties in achieving a political consensus to overturn a Supreme Court constitutional decision suggest that the Supreme Court may have substantial discretion in the interpretation of the Constitution, and, furthermore, that changes in the ideological composition of the Supreme Court may have a large impact on Supreme Court decisions. In this paper we develop a theory of Supreme Court constitutional decisions following the approach developed in Gely and Spiller (1990) for statutory deci-