Court Curbing Research Articles

A Shadow’s Influence? How the Shadow Docket Influences Public Opinion

Does increased use of the shadow docket influence public opinion of the Supreme Court? In recent years, the shadow docket of the Supreme Court has been used with increased frequency to make important decisions. The little research done previously on this docket has led to speculation that the shadow docket creates potential problems with perceptions of legitimacy for the Court. I theorize that procedures matter in changing public opinion of an institution when the procedures are nontransparent, stray from expected norms, and are thus perceived as politically unfair. I administered a survey experiment and find evidence to suggest that use of the shadow docket procedure does lead to less support for decisions as well as an increased support for measures of broad court curbing. The results have important implications for approval of the Court as well as the role of the Court in a transparent democracy.

Populist governments, judicial independence, and public trust in the courts

ABSTRACT Can governments make courts politically compliant without undermining public confidence in the judicial system? Many studies show a positive relationship between judicial independence and citizens’ trust in courts. However, most of them have shown static cross-sectional correlations rather than actual effects of court curbing on trust. Factors such as citizens’ level of education and political preferences may also play a role in moderating reactions to court curbing. We analyse how assaults on judicial independence by populist governments in Turkey, Hungary, and Poland affected judicial trust, using a difference-in-differences approach to Eurobarometer data. While we find evidence that court curbing has an adverse effect on judicial trust, this effect is much clearer among citizens who are ideologically distant from their governments. These findings coincide with experimental evidence indicating how citizens tolerate democratic backsliding, suggesting that, for many, trust in the judicial system can subsist even when courts are made politically subservient.

Are courts “different?” Experimental evidence on the unique costs of attacking courts

U.S. courts have long been thought to be held in special regard by the American public, and public support is theorized to protect institutions from interbranch aggression. At the same time, recent research underscores that institutional fealty and public reaction to court curbing is shaped by partisan concerns. Drawing on a survey experiment fielded in the U.S., we evaluate whether (1) the public is uniquely punitive toward incumbents who seek to undermine a court rather than an agency and (2) the extent to which these penalties are dependent upon shared partisanship with the proposer. We demonstrate that the public is less supportive of efforts to strip judicial power than analogous efforts to strip power from an executive agency, but that this penalty for court curbing dissipates in the face of copartisanship. This substantiates previous claims regarding the role of partisanship on shaping public attitudes about high courts but underscores that the American public may still hold the courts in unique regard.

The Costs of Court Curbing: Evidence from the United States

Canonical models of interbranch relations assume that incumbents undermine well-respected courts at their own peril. Although court-curbing proposals are frequent in diverse political and institutional contexts, there have been few efforts to examine the electoral costs of interbranch aggression. Drawing upon vignette and conjoint experiments, we find some evidence that the public will punish incumbents for attacks on courts. However, the size of the effect varies: it is largest among individuals who hold the court in high esteem and can be mitigated by copartisanship with the proposer. Moreover, once information about partisanship and issue positions is available to respondents, the effect of supporting court curbing is smaller than other considerations. These results have implications for the public’s willingness to safeguard the institutional separation of powers via the electoral connection and suggest that politicians may engage in activities that erode democracy without a broad loss of public support.

The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing

ABSTRACT Recent interest in the use of section 33 of the Canadian Charter of Rights and Freedoms has renewed political and scholarly attention to this unique device of constitutional politics. The notwithstanding clause is notable for being an opt-out clause exclusively available for government use, positioning it above the courts on key areas of rights. This article argues that the notwithstanding clause can be understood properly as an institutionalized mechanism of court curbing; that is, as an effort to limit a court’s power. We analyze uses of the notwithstanding clause using national and regional media coverage to understand how section 33 is framed, as well as an original dataset that investigates Canadians’ support of the notwithstanding clause and court curbing.

State Supreme Court Responsiveness to Court Curbing: Examining the Use of Judicial Review

State legislatures introduce court-curbing legislation as they threaten to restrict the independence of state high courts. While scholars have examined when this legislation is introduced and what drives the introduction, we know little about how state supreme courts react to this legislation. In this paper, I begin the examination into how state courts react to court-curbing legislation by looking to the court’s exercise of its judicial review power. I theorize that state supreme courts are less likely to invoke their power of judicial review when facing increased court-curbing legislation because judicial review is the most direct form of communication between the branches. I also argue communication is necessarily conditioned by the methods of selection and retention in the states. Examining narrow and broad court curbing, I find that neither type of introduction affects the use of judicial review by the state supreme courts and that, in line with previous scholarship, courts are using legislative ideology as an informational signal in this interbranch interaction.

Ex Ante and Ex Post Control over Courts in the US States: Court Curbing and Political Party Influence

Court curbing, proposed policy that attempts to “restrict, remove or otherwise limit” the power of the judiciary, occurs regularly and with considerable variation throughout the US states. I deviate from past studies, which consider court curbing as an ex post control mechanism, by focusing on ex ante controls of state courts – judicial selection rules and processes. I argue that levels of political party influence over judicial selection (before a judge is seated) alter the motivation to engage in court curbing after a judge is seated. I test this novel ex ante explanation with an original data set of court curbing and judicial selection from 2015 to 2018. Mixed results offer some support for my theory while opening new opportunities for study, particularly among partisan election systems.

New Data on Court Curbing by State Legislatures

AbstractThe examination of the interaction between the institutions in American state politics has long suffered from a dearth of data. This is the case despite the importance of understanding the separation of powers in the states and the specific effects on policy making and policy outcomes. In this article, I introduce a new, original dataset of court-curbing introductions by state legislators. The data include information on more than 1,200 state legislative bills that would restrict the power of the courts. In this article, I provide descriptive statistics for the data, employ the data to test hypotheses, and explain how this data may be used in future scholarly research on the interactions between state legislators and state courts.

International court curbing in Geneva: Lessons from the paralysis of the WTO Appellate Body

AbstractThe 21st century has witnessed a backlash against many international courts (ICs). Studies of IC backlash have generally taken an optimistic tack, noting that most courts have survived backlash intact or—in the case of the paralyzed Appellate Body (AB) of the World Trade Organization (WTO)—are likely to do so after a temporary period of slumber. In this context, this paper analyzes the United States' successful effort to paralyze the AB, deriving lessons from this deviant case of backlash against one of the world's most active and independent ICs. Undertaken in the context of the “Reversing Delegation” research project, this account is organized in five parts. First, I demonstrate that the creation of the AB was a classic instance of delegation of dispute‐settlement power, and that the AB quickly emerged as an active agent of trade liberalization. Second, I explore the roots of politicization, noting that dissatisfaction with AB jurisprudence preceded the Trump administration, although Trump's delegitimation of the AB was more far‐reaching than that of his predecessors. Third, I examine the administration's use of the veto power to paralyze the AB, an act of de facto de‐delegation. Fourth, I assess the pushback from the many other WTO members that sought to defend the AB, showing how they failed to blunt the US campaign. Fifth, I analyze the remarkably successful outcome of the US attack, and draw lessons for judicial independence and the rule of law in international politics.

Greater public confidence in the US Supreme Court predicts more jurisdiction stripping

AbstractA growing body of empirical research shows an association between public support for the US Supreme Court and both judicial independence and congressional court curbing activity. At the same time, studies of jurisdiction stripping show Congress’ efforts to limit federal courts’ jurisdiction are principally related to courts’ workloads rather than ideological differences between courts and Congress. Here, the authors connect these streams of inquiry by testing the hypothesis of a negative relationship between public support for the Supreme Court and jurisdiction-stripping legislation. Contrary to prior studies, the authors find a positive relationship between Americans’ confidence in the Supreme Court and jurisdiction stripping. This result indicates the need for additional research on the interactions among public opinion, federal courts, and Congress.

The Minimal Costs of Court Curbing: Experimental Evidence from the United States

The Minimal Costs of Court Curbing: Experimental Evidence from the United States

Court Curbing in the State House: Why State Legislators Attack Their Courts

Legislative proposals that attack or curb state supreme courts are often introduced in state legislatures. However, the causes of state court curbing legislation have not been systematically analyzed. This article seeks to expand on existing knowledge of court curbing by examining what causes some U.S. state legislators to introduce court curbing bills. I develop a theoretical argument that court curbing is driven by court–legislator ideological distance and legislator electoral security. I demonstrate that legislators who are ideologically distant from their state supreme court and electorally secure introduce the most court curbing legislation.

The Conditional Effectiveness of Legislative Threats: How Court Curbing Alters the Behavior of (Some) Supreme Court Justices

The separation-of-powers literature focuses on how the preferences of one branch constrain the behavior of its counterparts. Yet, in much of this work, scholars do not address how responsive behavior varies across particular members. Focusing on Court curbing legislation in Congress, we develop a model of heterogeneous responsiveness. Our theory identifies two distinct mechanisms that underpin responsiveness in judicial behavior, implying that the chief justice and the most moderate (swing) justice are more likely than their colleagues to adjust their behavior in response to external threats from Congress. We find that these two justices are significantly less likely to vote to invalidate legislation than their colleagues during periods of heightened Court curbing and provide evidence that distinct mechanisms shape their behaviors. In addition, we offer justice-specific evidence using a pre–post promotion analysis, demonstrating that Justice Rehnquist became responsive to Court curbing only after becoming chief justice. Our model highlights the micro-level underpinnings of judicial responsiveness to inter-institutional politics and, most broadly, speaks to the need for separation-of-powers models to differentiate the preferences of individual political actors when seeking to understand inter-institutional responsiveness.

Political Opportunism, Position Taking, and Court-curbing Legislation

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.

Restraining the Court: Assessing Accounts of Congressional Attempts to Limit Supreme Court Authority

We propose a multilevel account of legislative Court curbing in order to assess existing explanations as to why such proposals come about. We argue that although Court curbing is commonly seen as the result of institutional conflict between Congress and the Supreme Court, it is best understood as a product of three interrelated factors: the individual motivations on the part of lawmakers, the partisan context in which they operate, and institutional disagreements between Court and legislature. We find evidence that micro‐level factors offer an important insight into Court curbing that institution‐focused explanations alone cannot.

State Legislatures, State High Courts, and Judicial Independence: An Examination of Court-Curbing Legislation in the States

Central to the debate over whether or not to elect judges is the tension between judicial independence and accountability. Though we think of independent courts as being less constrained in their decision making, even highly independent judiciaries can be constrained by their legislative and executive counterparts. In this article, I examine one avenue of constraint—court-curbing legislation. I argue that court independence should increase the use of this legislation, as the other branches of the state government seek to check the power of the court. I find that court curbing is driven more by political conditions than the methods of selection and retention.

Court Curbing via Attempt to Amend the Constitution: An Update of Congressional Attacks on the Supreme Court from 1955–1984

This study investigates the validity of the common practice of differentiating between “high” and “low frequency” periods of congressional attacks on the Supreme Court. In-depth examination of the Congressional Record from 1955–1984 reveals 1,497 previously uncounted constitutional amendment attacks. Rather than starting and stopping, the never-ending court curbing efforts of this era evolved in four phases, differentiated by shifts in an unexamined dimension—leadership of attacks. This suggests that modern attacks may be a way for partisan and regional coalition managers to “signal” others (including those outside the Court) in efforts to maintain, build, or assert their party's dominance. Court curbing may therefore play a greater role than realized in party system development, making congressional attacks an overlooked “mechanism” through which coalitional change may be both opposed and wrought.

International Judicial Legitimacy: Lessons from National Courts

How can international courts better establish their legitimacy? We can better answer this question by first focusing on what scholars have learned about how national courts build legitimacy over time. The literature suggests that national courts strategically build legitimacy by balancing their own policy preferences with those of their audiences. In so doing, they attempt to avoid instances of court curbing that can diminish legitimacy over the long run. Applying a similar strategy can be more difficult for international courts for two key reasons: (1) they serve audiences with more diverse preferences than national courts; (2) they are less likely to be able to predict which rulings will result in significant backlashes from these audiences.

International Judicial Legitimacy: Lessons from National Courts

How can international courts better establish their legitimacy? We can better answer this question by first focusing on what scholars have learned about how national courts build legitimacy over time. The literature suggests that national courts strategically build legitimacy by balancing their own policy preferences with those of their audiences. In so doing, they attempt to avoid instances of court curbing that can diminish legitimacy over the long run. Applying a similar strategy may be more difficult for international courts for two key reasons: (1) they serve audiences with more diverse preferences than national courts; (2) they are less likely to be able to predict which rulings will result in significant backlashes from these audiences.

THE SEPARATION OF POWERS, COURT‐CURBING AND JUDICIAL LEGITIMACY ERRATUM

In “The Separation of Powers, Court Curbing, and Judicial Legitimacy” (American Journal of Political Science 53 (4): 971-89 (2009)), there is a slight error in the proof of Proposition 3. Specifically, Congress’s (C ’s) payoff from deviating to a pure strategy, !(! = L ) = h should be given by (1 − m)bc − mbc − e. C ’s strategy from playing a pure strategy !(! = L ) = l is given by e − bc . Thus, the mixing probability that makes C indifferent between playing!(! = H) = l and!(! = H) = h is m = bc−e bc . This probability holds for all bc > e. Thus, the equilibrium characterized in Proposition 3 exists for all bc > e. Note that this correction does not affect the substantive interpretation of the model or the empirical implications derived. In the article, analysis was constrained to the case where bc 2e, it was asserted there exists a pooling equilibrium in which the Court never makes a constrained decision upon observing Court curbing. The comparative static derived was that as bc increases—as the Court and Congress become more ideologically divergent—the Court should be less likely to make a constrained decision upon observing Court curbing. The algebraic correction reveals that the semi separating equilibrium holds for all b > e, and the restriction that bc < 2e is not necessary. However, the probability with which the Court makes an unconstrained decision upon observing Court curbing (! = h), m = bc−e bc , is increasing in bc . Thus, the prediction that judicial restraint in response to Court curbing should decrease as Congress becomes more ideologically divergent from the Court continues to hold.