The Separation of Powers, Court Curbing, and Judicial Legitimacy

Abstract

A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial‐congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court‐curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self‐restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.