Florida State University Libraries
Honors Theses
The Division of Undergraduate Studies
2012
Court-Curbing: Why and When Members of
Congress Seek to Harm the Supreme Court
Phillip Marino
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Abstract
Clarke and others have established that Congressional Court-curbing proposals are used to great
effect by members of Congress to impose their will upon the Supreme Court. However, the
reasoning behind such proposals by Congresspersons has remained largely unstudied. This paper
seeks to explain why and when members of Congress will seek to curb the Court by arguing, and
supporting with empirical regression analysis, that members of Congress respond to the relative
‘activity’ of the Court and the Court’s ideological divergence from the Congressperson in
question when proposing Court-curbing legislation.
Keywords: Court-curbing, Supreme Court, Congress, Judiciary
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Florida State University
College of Social Sciences
Court-curbing: Why and When Members of Congress Seek to
Harm the Supreme Court
By Phillip Marino
A thesis submitted to the
Department of Political Science
in partial fulfillment of the requirements for graduation with
Honors in the Major
BS and BA Awarded
Spring, 2012
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The members of the defense committee approve the thesis of Phillip Marino
defended on April 3, 2012.
______________________
Dr. Cherie Maestas
Thesis Director
______________________
Dr. Brad Gomez
Committee Member
______________________
Dr. Jonathan Sheppard
Outside Member
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In 2005, HR3073 was proposed in the US House of Representatives; if this bill had been
accepted and passed into the law, the entire framework of American politics would have been
altered almost instantly. HR3073 proposed that Congress may, with a 2/3rds majority, overrule
any decision of the Supreme Court – essentially destroying the institutional authority of an entire
branch of government. However, HR3073 is unique only in its straightforward severity, as the
proposition of Court-curbing legislation is not at all uncommon. Court-curbing legislation is any
“legislative proposal to restrict, remove, or otherwise limit judicial power” (Clark, 2009). In
short, Court-curbing legislation is a direct attempt by Members of Congress to pass into law an
act that would damage the institutional authority and policy-altering capacity of the Supreme
Court. Despite the enormous implications and importance of Court-curbing legislation, it
remains a relatively unstudied phenomenon. In particular, there has been very little research into
Court-curbing efforts from the point-of-view of Congresspersons, and as a result, the causes and
conditions of Court-curbing have gone largely unstudied.
Needless to say, should Congress pass such a law as HR3073, the institutional integrity of
the judiciary branch of government would collapse and be replaced with an incredibly powerful
legislature. The idea of “Checks and Balances” and consequently the entire climate of American
politics would change overnight. It is therefore highly relevant in the scheme of national politics
to understand why and when Members of Congress seek to curb the Court and alter the political
landscape of the United States in a very substantial and virtually unprecedented way. In the
words of Justice Scalia, “gridlock [read: “checks and balances”] is what our system was designed
for” and should any one branch of government come to exert inordinate influence over another,
that designed feature of the American political system would begin to erode (Cochn, 2011).
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It has already been strongly and scientifically demonstrated that proposed Court-curbing
legislation is an effective means by which Members of Congress may communicate with the
Court and that the Court is very likely to hear fewer cases and to strike fewer laws when
presented with an increase in Court-curbing legislation (Clark, 2009). However, it is the case that
Congress seems to have very specific goals in mind while curbing the Court and that more
mundane acts of the Court do not draw Congressional attention and Court-curbing legislation
(Henschen, 1982). As a result of this knowledge, the Supreme Court often seeks to avoid hearing
cases that are likely to draw unwanted and dangerous attention from Congress and cases that
would force the Court into opposing public opinion (Goelzhauser, 2010; Hansford and Damore,
2000; Marshall, 1986; Franklin and Kosaki, 1989; Hoekstra, 2000). Carefully choosing the
Court’s battles seems to largely – but not exclusively – result from the efforts of the Chief Justice
and the Senior Associate Justice, who have some sway over what cases are heard and decided on,
but most importantly how cases are decided and to what extent the Court’s majority opinion
alters policy (Johnson, Spriggs, and Wahlbeck, 2005; Dorff and Brenner, 1992; O’Brien, 1985).
In many cases, the Supreme Court bows to the preferences of Congress and decides cases in a
manner that will not draw the ire of Congress or its members (Segal, 1997). Nevertheless, when
the Court does choose to exert its influence over policy, it wields enormous, albeit highly
concentrated and specific, power over a narrow policy issue (Flemming, Bohte, and Wood,
1997). Although Congress is typically considered the more “powerful” institution, the Supreme
Court is not without influence or authority and is a very real threat to Congressional policy
preferences.
It is well established that Congress holds great influence over the Supreme Court and that
the Supreme Court acts strategically to prevent Congressional Court-curbing (Clark, 2009). What
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remains a mystery, however, is leads Members of Congress to propose Court-curbing legislation,
as the academic literature is largely silent on this matter. This paper seeks to answer this question
and proposes that Court-curbing legislation is a result of ideological divergences between
members of Congress and the Court in addition to a Congressional response to an inherent and
intentional institutional rivalry.
The Why and When of Court-curbing
In order to properly understand and explain the motivation and timing of Court-curbing
legislation proposals, it is necessary to make three key assumptions about Congress, the Supreme
Court, and the interaction of those institutions. The first and most obvious of these assumptions
is that Members of Congress and the Supreme Court are strategic actors who will compete for
their preferred policy outcomes in a rational manner (Goelzhauser, 2010; Hansford and Damore,
2000; Marshall, 1986; Franklin and Kosaki, 1989). The remaining assumptions are more
complex and warrant more detailed explanations…
Assumption Two: Congress and the Supreme Court are inherent institutional rivals that
can successfully oppose and damage the policy setting capacity of the other. As this paper has
already discussed, Congress possesses enormous power over the Court and the ability to pass
laws that are potentially very damaging to the institutional authority and policy-setting capacity
of the Court (Clark, 2009; Segal, 1997). As a result of this power, Congress can successfully
oppose and damage the Court. Members of the Court are aware of this threat and perceive
Congress and its members as potential rivals in reaching policy goals and as inherent institutional
rivals against whom competition is routine (Goelzhauser, 2010; Hansford and Damore, 2000;
Johnson, Spriggs, and Wahlbeck, 2005).
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The reverse is also true. The Court has within its power the ability to strike acts of
Congress, thus preventing Congresspersons from achieving their preferred policy, weakening the
institutional authority of Congress, and clearly demonstrating themselves to be rivals of
Congress and its members (Martin, 2001; Flemming, Bohte, and Wood 2007). The Court’s sway
over Congress is limited by public support, however, and for this reason the Court is incredibly
unlikely to oppose Congress when public opinion is not strongly on its side (Marshall, 1986;
Franklin and Kosaki, 1989). Nevertheless, the Supreme Court is still capable of greatly altering
policy, and indeed many of the most significant policy changes of the Twentieth Century were
the result of the Supreme Court strategically employing its powers on the issues that mattered
most to them at the time – abortion, desegregation, free speech, etc.
Through their repeated strategic interactions and previous research, it is appropriate to
assume that Congresspersons and Supreme Court Justices view each other as sincere threats to
their respective policy preferences and as inherent institutional rivals.
Assumption Three: Institutional authority and policy-setting capacity are valued highly
by members of the Court and Congress. It is hardly earth-shattering to assume that Members of
Congress and the Court value their preferred policy outcomes (e.g. Henschen, 1982; Johnson,
Spriggs, and Wahlbeck, 2005; Dorff and Brenner, 1992). The less intuitive assumption here,
however, is that members of both the Court and Congress place great value on the institutional
authority of their respective organs of government and the ability of their institution to alter
policy in the future. For example, a Congressperson would prefer a Court that does not strike
down acts of Congress – out of fear that an even greater precedent for opposing Congressional
legislation will be cemented by the Court – because doing so weakens the institutional authority
of Congress, which is valued as a means of generating future policy. Likewise, members of the
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Supreme Court would prefer if Congress never proposed or passed laws that were damaging to
the Court for the same reason. In short, members of the Court and Congress would prefer if their
institution did not need to compete for policy preferences with the other.
These critical assumptions frame members of Congress – and the Court – as highly
rational and strategic actors, as they arguably are. With this in mind, it is possible to examine the
acts, decisions, and proposals of Congresspersons in a scientific and rational way using empirical
analysis supported by political theory and previous research. Furthermore, with these
assumptions established, it is clear that members of Congress curb the Court with a strategic goal
in mind.
Theory of individual level proposals of Court-curbing legislation
A Member of Congress is both highly rational and strongly interested in reelection and
vote seeking (Mayhew, 1974). Members of Congress also strongly desire to see their ideal policy
preference implemented and are even more motivated when these preferences and reelection
coincide. Furthermore, the ability of Congresspersons to establish a stance in regards to policy
(and the pursuit of the implementation of that policy) garners them both votes and campaign
contributions (Rocca and Gordon, 2010). Furthermore, Rocca and Gordon and Clark have
established that non-roll-call votes (proposals and trivial votes), which comprise the vast
majority of Court-curbing proposals, are relatively important legislative acts that send highly
credible signals to campaign allies, other political institutions, and to other institutions (2010;
Clarke, 2009). This previous research provides a picture of Congressional authority that relies
heavily on an individual’s ability to take stances on issues and to influence policy as a means of
attracting both campaign support and votes. As a result of this relationship between policy-
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setting-capacity and vote garnering, it is the case that if members of Congress were unable to
implement or influence policy, they would likewise have difficulty in attracting votes. It is for
this reason that members of Congress will jealously defend their preferred policies and, most
importantly, their ability to create and alter policy in the future. This paper argues that members
of Congress pursue Court-curbing as a way of primarily protecting their preferred policies in the
face of a rival institution that may seek to harm those policies and their ability to (re)create
policy in the future, and thus their chances at reelection.
Ideology
The most obvious and understandable explanation for the proposition of Court-curbing
legislation is that members of Congress are more likely to propose such legislation as their own
ideology diverges from that of the Court.1 Members of Congress will inherently attempt to
pursue their own ideological interest and oppose those interests which run counter to them
(Meernik and Ignagni, 1995). Therefore, members of Congress are more likely to attempt to curb
the Supreme Court when the Court is ideologically opposed to them. This does not mean that a
member of Congress will necessarily react to individual Court decisions that involve opposing
ideological rhetoric – although they very well may, but that is a different research question;
rather, it means that members of Congress are more likely to contest and curb a Court that they
perceive as ideologically opposed in general (Henschen, 1982). In other words, no action on the
part of the Court is necessary to bring about Court-curbing proposals; if the Court as a whole
simply possesses ideological opinions that are divergent from a particular member of Congress it
is more likely that that member of Congress will propose Court-curbing legislation.
1
Of course an institution cannot have an ideology; rather, its members have ideologies. Yet, due to the nature of
the Supreme Court, it is useful to think of the institution as having a dominant ideology as a result of the
combined, opposing, and allied ideologies of its members.
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This relationship is the result of fairly typical and common political behavior. When two
institutions – or even individuals – are ideologically opposed and routinely in competition over
policy preferences, it is likely that they will seek to curb the other and bolster their own policysetting capacity. This behavior is a straightforward attempt at achieving a greater likelihood of
obtaining policy preferences in the future, by way of weakening a rival in the present.
Members of Congress will seek to curb an ideologically divergent Court more frequently
than they would an ideologically allied Court. However, it is not the case that ideological
alignment is sufficient to prevent all efforts of individual level court-curbing, although it is
arguably necessary. It is also the case that ideological divergence is not the same as party
divergence. The Supreme Court is not dominated – or even substantially affected – by party
politics or “party lines” and is therefore not likely to draw the wrath of Congresspersons simply
as a result of party differences (Howard and Segal, 2004; Bartels, 2011). Ideology, on the other
hand, has a clear and powerful effect over how the Supreme Court chooses and decides cases,
thus making it a point of interest and worry for members of Congress (Howard and Segal, 2004;
Lindquist and Solberg, 2007).
Hypothesis One: An individual member of Congress is more likely to propose a piece of Courtcurbing legislation as the distance between their ideology and that of the Court increase
Institutional Rivalry
Past ideology, it is necessarily to consider the role of institutional rivalry in the
proposition of Court-curbing legislation. The Supreme Court and Congress are rivals, and
members of each institution are well aware of this competitive relationship. Beyond this
inherently competitive relationship, the Supreme Court is capable of – and often does – send
Marino 11
signals, both intentionally and unintentionally, to Congress (e.g. Johnson, 2003; Baird, 2004).
Many of these signals can be, and often are, interpreted by members of Congress as being
threatening to their institutional authority and policy-setting capacity, in addition to their
personal policy preferences. As a result of these threatening signals and the recognition of an
inherent institutional rivalry, members of Congress may come to feel threatened by the Court –
both personally and institutionally – and as Congresspersons feel more threatened, they will be
more likely to propose Court-curbing legislation as a means of checking their rival.
A potent real-world example of this institutional rivalry is presented by Congressman
Todd Akin of Missouri. Mr. Akin routinely proposes Court-curbing legislation – most notably
the “Pledge Protection Act” – and has been quoted with saying: “The Supreme Court and courts
in general have been usurping the role of the legislative branch of government.” Mr. Akin’s
continued proposal of Court-curbing legislation, coupled with his statements regarding the Court,
lends “real-world” credibility to the arguments of this paper that members of Congress do fear
institutional challenges presented to them by the Court. As a further reinforcement to this
argument, Mr. Akin is a Republican and a conservative, yet he has proposed all of his Courtcurbing legislation during the tenure of conservative-dominated Rehnquist and Roberts Courts.
The Supreme Court avoids publicity, public statements, and transparency of almost every
type (Mishler and Sheehan, 1996). Given this fact, the two most obvious and influential signals
of an increased institutional role that the Court can send to Congress are the total numbers of
laws it strikes and the total size of the Court’s docket. The total numbers of laws struck by the
Court would, upon initial consideration, seem to be a strong forecaster of Court-curbing
legislation. There is, however, a major flaw with using the number of laws struck by the Court as
a predictor of Court-curbing legislation: “there is no use in crying over spilt-milk.” The law that
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a member of Congress would wish to protect has already been, for all intents and purposes,
irreversibly struck, and the damage to Congress as an institution already inflicted. A
Congressional response to such an act of the Court would only serve as a warning in regards to
future Court activity and would have no effect on preserving the policy already struck down.
Members of Congress are rational; they will seek to provide themselves with a strategic
advantage that will aid them in achieving their preferred policy outcomes and reelection
(Hettinger and Zorn, 2005). Responding to an irreversible act does not help them obtain their
preferred policy in that instance, nor does a simplistically vengeful act in the face of a policy
failure serve to earn them reelection. The more rational course of action for members of
Congress would be to reserve their political capital for uses that could both send the desired
signal to the Court and preserve their intended policy. For this reason, Hypothesis Two is
expected to be denied.
Hypothesis Two: An individual member of Congress is more likely to propose a piece of Courtcurbing legislation as the number of laws struck by the Supreme Court increases.
The overall size of the Court’s docket – or the total number of cases heard by the Court –
is the most credible and threatening signal the Court can send to Congress about its intentions as
a policy-generating and altering institution. The more cases the Court decides to hear, the more
potential impact it can have on policy and the greater its institutional authority and role in
government becomes – as a matter of precedent. For obvious reasons, a Court that is relatively
more active is more threatening to Congress as an institution and to individual Congresspersons
than is a relatively inactive Court. Furthermore, Congresspersons recognize that this threat from
the Court can still be responded to in such a way as to preserve their preferred policy. Even if a
member of Congress were to hold a personal grudge against the Supreme Court for striking a
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particular law, they would be wiser to wait until they had another piece of legislation under
review by the Court to signal the Court, rather than needlessly expending political capital
seeking vengeful legislation that cannot undo the Court’s previous ruling.
When faced with credible threats to their own policy preferences and to the institutional
authority of Congress, Congresspersons will play a strategic game and seek to counteract those
threats. The primary tool of any Congressperson in opposing the Court is through the proposal of
Court-curbing legislation, which sends a clear and unmistakable signal and threat to the Court, a
signal that routinely results in the Supreme Court both striking fewer laws and hearing fewer
cases (Clark, 2009).
Hypothesis Three: An individual member of Congress is more likely to propose a piece of
Court-curbing legislation as the number of cases being heard by the Supreme Court increases.
Empirical Analysis
In order to test the aforementioned hypotheses and the impact of the corresponding
primary independent variables on the dichotomous dependent variable, a Logit regression is
employed. The unit of analysis used in this project is an individual member of Congress during
year X. The years tested in the following regressions range from 1954 to 2002; although data is
available from 1946 to 2008, the former dates comprise more-or-less complete data, whereas the
latter is fragmented and thus not suitable for testing. From 1954 to 2002, the data provide over
9,000 complete observations. Also, during the period ranging from 1954 to 2002, there exists
within the data substantial variation amongst all of the variables indicated and described below.
For example, over this span of years, the number of cases heard by the Supreme Court ranged
from 77 to 208, and the Court underwent a dramatic shift from being dominated by liberals
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(Warren and Burger Courts) to being dominated by conservatives (Rehnquist and Roberts
Courts). Similar variation exists in Congress where ideology and party affiliation are ever
fluctuating. These years are also particularly relevant for study because they encompass the
existence of the modern Court and will not lead to empirical corruption by elements of history
that are no longer present in Supreme Court and Congressional relations after the New Deal
(Pacelle, 1991).
This section begins with an explanation of variables, continues with a discussion of the
regression analysis, and concludes with the estimation of predicted probabilities of the
independent variables.
Variables
Dependent Variable:
Proposal of Court-curbing Legislation (Proposed). The dependent variable is a simple
dummy variable measuring 1 if Congressperson X proposed a piece of Court-curbing legislation
in year X and a 0 if they did not.2 This measure uses Clark’s standard for Court-curbing
legislation as defined earlier in this paper (2009). Only Congresspersons that actually introduce
the bill are recorded; co-sponsors are not recorded as a one. The distribution of this variable is
incredibly zero-heavy, in that only 1.7% of this variable’s iterations are a one, thus meaning that
Court-curbing legislation is not an overly common type of legislative proposal.3 Court-curbing
legislative proposals are, however, not restricted to a few members of Congress and are proposed
by varied individuals, as opposed to a few repeat-proposer.
2
Year is used as a common measurement of the Court and Congress since these institutions use different
schedules and sit for different periods.
3
This rarity of Court-curbing proposals is the primary reason for running both a Logit and Rare Events Logit
regression to test this paper’s hypothesis.
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This variable was measured in two ways. For the years of 1956 to 1989, a synopsis of
every bill referred to the Judiciary Committee of either house was read and included in the
dataset if it met the definition of Court-curbing legislation: “a legislative proposal to restrict,
remove, or otherwise limit judicial power.” 4 For all remaining years in the data, the online
THOMAS search engine was used to find legislation pertaining to the Judiciary, which was then
reviewed using the definition stated previously (Clark 2009).5
Primary Independent Variables:
Ideology of Congressperson X compared to the mean ideology of the Court during year X
(Idea Divergence). This is measured by using the absolute difference between the mean
Common Space score of the nine members of the Supreme Court compared against the Common
Space score of Congressperson X in year X. The Common Space Scores for members of
Congress were obtained through the data publically provided by Carroll, Lewis, Lo, McCarty,
Poole, and Rosenthal via the fourth release of the “Common Space DW-NOMINATE” project
(2004, 2009). Ideology of the Justices (Common Space Score) is measured using the standard
Bayesian ideal point estimator – developed by Clinton, Jackman, and Rivers in 2009 – based
upon their voting behavior and the content of their written opinions and is roughly comparable to
the Bailey scores of Members of Congress (Clark, 2009, doctrine). The methodology of this
measure is very similar to that used in developing Congressional Common Space scores and is
similarly labeled a Judicial Common Space Score. After the individual Common Space scores
are generated, they are averaged together to find the mean Common Space score for the Supreme
4
The Digest of Public General Bills and Resolutions was used as a source for this information (Clark, 2009).
To prevent systematic bias as a result of different search methodologies, both methodologies above were used
for the years of 1981 and 1989 and 100% agreement between methodologies was found (Clark, 2009). All bills
indexed under “Courts,” “Supreme Court,” “Judges,” “Justices,” “Judiciary,” “Judicial Power,” “Constitution,” and
“Constitutional Amendments” were reviewed (Clark 2009).
5
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Court in year X, which is used as a measure of the dominant ideology of the Court. The distance
between this score and that of Congressperson X is then measured in absolute terms and
recorded as this variable.
Number of Cases Heard by the Court during year X (Cases Heard). This is the total
number of cases heard by the Supreme Court during a given a year as officially reported by the
Supreme Court (Clark, 2009). This variable includes all cases heard during year X, even those
that were not decided during that year.
Total number of laws struck by the Supreme Court in year X (Laws Struck). This variable
shows the total number of laws struck by the Supreme Court in year X (Clark, 2009). The
number of laws struck by the Supreme Court during a given year was first empirically published
by Clark and Whittington in 2007 and again by Clark in 2009. This measure – although not
identical to – is positively correlated with the Congressional Research List on the number of laws
stuck per year. Typically, the values differ by only one unit (Clark, 2009). The number of laws
struck is generated by reviewing all majority opinions for mention to specific statutes and laws –
passed by Congress – that the Supreme Court struck in that particular case (Clark and
Whittington, 2007). This variable is also lagged by one year in Model Two.
Ideological Divergence times Cases Heard (Idea Div x Cases). The independent variables
“number of cases heard” and “ideological divergence” are formed into a standard interaction
variable. This variable is included as a means of demonstrating the sufficiency of both
ideological divergence and the number of cases heard in creating a correlative relationship and as
a means of debunking claims that both of these factors are necessary, but not necessarily
sufficient, in leading to an increase in Court-curbing legislation.
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Control and Other Variables:
In order to guard against outside threats to the validity of this paper’s model, it is
necessary to include several key control variables. These variables seek to include a check for
other potential causes of Court-curbing legislation, as well as to enhance the value and depth of
this paper’s models.
Membership of Congressperson X on the Judicial Committee (Jud Comm). A simple
dummy variable scoring a 1 if the member of Congress in question is a member of the Judicial
Committee and 0 if they are not (Stewart and Woon, 2011).
Party Seniority (Seniority). This variable is Congressperson X’s rank on their party’s
committee assignment list in year X (Stewart and Woon, 2011). For example, a rank of “one”
would mean that person X is the most senior member of the party and the highest ranked
(number wise) member is the lowest ranked member. Party Seniority is included to account for
any possibility that a Congressperson’s experience or authority within their party dictates their
level of Court-curbing activities.
Party Membership (Party). A Congressperson scores a zero if they are a member of the
Democratic Party, a one if they are a Republican, and members of all other parties are scored
using the Poole and Rosentthal’s conventions (Stewart and Woon, 2011).6
Supreme Court Ideology (Court Idea). Here the mean of each justice’s Common Space
score is calculated for year X using the methods described previously, and then these scores are
6
A measure of if a Congressperson was a member of the majority party in their house and in Congress as a whole
was also used, although it yielded no statistical significance in any of this paper’s models.
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averaged together.7 This measure is included as a control for the possibility that when a
particular ideology is dominant in the Court, Members of Congress are more likely to curb the
Court, and the Court is more likely to hear a relatively larger number of cases.
The Model8
The Relationship
This paper uses a standard Logit model to test its primary hypotheses, due the
dichotomous nature of the dependent variable. The various models employed by this paper are
discussed in the subsequent paragraphs and the size of the effects are measured and discussed in
the next section.
Table One demonstrates substantial support for Hypotheses One and Three and as
expected shows no statistical support for Hypothesis Two. This suggests that a proposal of
Court-curbing legislation is highly correlated with the ideological divergence between a member
of Congress and the Court (H1) and the number of cases the Court hears (H3); furthermore, this
suggests that the number of laws the Court actually strikes has no (or very limited) baring on
Court-curbing proposals (H2).
Hypothesis One is strongly supported by the statistically significant effect and existence
of a positive correlative relationship, in every model, between an increasing absolute difference
in the ideology of Congressperson X and the Supreme Court and the likelihood that that member
of Congress will propose a piece of Court-curbing legislation in a given year. Likewise,
7
A measure of ideology using the Median Member of the Supreme Court was also used and this variable returned
highly comparable results.
8
This model was also run using a Rare Events Logit and highly comparable results were obtained. Stata “Do” files
available upon request. However, a Logit Regression was chosen as the primary test of this paper’s arguments as a
result of the clarity of its predicted probabilities when compared to those of a Rare Events Logit.
Marino 19
Hypothesis Three is strengthened by the positive and statistically significant effect, again in
every model, that an increase in the number of cases heard by the Supreme Court has on the
likelihood that an individual member of Congress will propose Court-curbing legislation.
Nevertheless, as Model 2 demonstrates, the interaction of these variables is not at the root of
their effect and both variables on their own are sufficient to indicate positive correlation with the
dependent variable.
Hypothesis Two cannot be affirmed, as it lacks statistical significance in every model.
The lack of statistical significance for the number of laws struck is likely the result of
Congresspersons being more interested in the Court’s level of attention to their preferred policy
(and their ability to generate such policy) in particular – to which the difference in their ideology
and that of the Court is a better predictor – than to the Court’s overall activity. The Court’s actual
striking of laws is not perceived to be an immediate threat to the institutional authority of
Congress because it is a “sunk cost” of sorts. This relationship has also been tested by lagging
the “laws struck” variable by one year in Model Three, as compared to Court-curbing legislation
proposed, and highly comparable results were obtained. 9 Once a law is struck by the Supreme
Court, there is little a Member of Congress can do in retaliation, other than to re-propose the law
with more acceptable and Constitutional wording; the striking of a law cannot be undone. For
this reason, no warning or threat sent to the Court will have any effect on what the Court has
already done. Being rational actors, Members of Congress will choose to act against a Court that
can still be influenced into the direction they would prefer and not against a Court that has
already acted in a nearly irreversible manner.
9
Highly comparable results were also achieved with lags of two and three years.
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It is also the case that these models suggests that political party affiliation is correlated
with an increase in the amount of Court-curbing legislation a member of Congress will propose
during a given year. In particular, these models suggest that members of the Republican Party are
more likely to propose Court-curbing legislation than their Democratic counterparts.
Nevertheless, the statistical significance of the primary hypotheses is not negatively affected by
this variable’s statistical significance.
None of the other independent variables include in the models showed any statistical
significance, as demonstrated by Table One. These results suggest that the rank of a
Congressperson and their committee membership plays a negligible role in their decision to
propose Court-curbing legislation. Furthermore, it appears that the Court’s ideological
composition is not a significant factor in predicting the likelihood that a Member of Congress
will seek to curb the Court. This would suggest that no particular ideological composition of the
Supreme Court draws the ire of Congresspersons. Liberal Supreme Courts are not singled out as
undesirable for example. Rather, it seems that – as this paper predicted and argues – Members of
Congress react to a Court that is of a different ideological stance than them, regardless of what
that stance is.
The Size of the Relationship
In order to understand the impact of the primary independent variables on the likelihood
that Court-curbing legislation will be proposed, it is necessary to employ predicted probabilities,
recorded in Tables Two and Three. These probabilities are all run using Model One as the
reference, although comparable results were also achieved with Models Two and Three. Each of
Marino 21
the following predicted probabilities holds all variables not-otherwise-specified at their mean in
the data.
Tables Two and Three demonstrates the size of the effect that an increase in the absolute
difference in ideology between the Supreme Court and Congressperson X has on that
Congressperson’s likelihood of proposing a piece of Court-curbing legislation. As Table Two
shows, when the Court and an individual Member of Congress are ideologically aligned at zero
absolute difference in Common Space scores, there is less than a 1.01 probability that that
Member of Congress will seek to curb the Court. On the other hand, as the divergence in
ideology grows, the probability that a Member of Congress will seek to curb the Court also
grows. For example, at an absolute difference of one, a Member of Congress is approximately
1.08 times more likely to propose Court-curbing legislation than when there is an alignment of
ideology. Although 1.08 may seem like a relatively small number, it is necessary to remember
that this is eight-times the likelihood of a proposal of Court-curbing legislation at the point of
ideological alignment and that the phenomenon of Court-curbing legislation is incredibly rare to
begin with. Taking this context into account, this finding of a 1.08 increase in the likelihood that
Court-curbing legislation will be proposed is actually quite striking.
Table Two also shows the effect that an increase in the number of cases heard by the
Court has on the likelihood that a Member of Congress will propose Court-curbing legislation.
This effect is vividly apparent, statistically significant, and in support of Hypothesis Three,
although it is smaller than the effect of ideology on Court-curbing proposals. In particular,
should the Supreme Court hear a relatively small number of cases – in this case 100 – a
Congressperson has only a 1.01 probability of proposing Court-curbing legislation. As with
ideology, as the number of cases heard by the Court increases, so too does the likelihood of a
Marino 22
Court-curbing proposal. For example, if the Court hears 200 cases (a relatively high number)
during a given year, the probability of a Court-curbing proposal rises from around .01 to
approximately .04. Again, this may appear small, but when taken in context it is still highly
relevant and noteworthy.
Table Three offers the most compelling support of this paper’s primary hypotheses by
presenting the size of the effect that both an increase in ideological divergence and a
simultaneous increase in the number of cases heard by the Court has on the likelihood of an
individual member of Congress proposing Court-curbing legislation during a particular year. In
this case, the result of a simultaneous increase in the number of cases heard and the divergence
of ideology is greater than “the sum of their parts” in that the effect of this combination is
considerably stronger than either effect by itself or simply added onto the other. When the Court
is hearing only 100 cases and is ideologically aligned to a particular member of Congress, that
Congressperson is highly unlikely – probability of considerably less than 1% – to propose a
piece of Court-curbing legislation. However, as the number of cases and the misalignment of
ideology increases, so too does the likelihood that Court-curbing legislation will be proposed,
and this increase is very substantial. For example, when there is an ideological misalignment of
.75 and 200 cases on the docket, there is a .11 chance that the Congressperson in question will
proposes Court-curbing legislation. This probability further increases to .15 when there is an
absolute difference of one between the ideology of the Congressperson and a Court that hears
200 cases. The most shocking result of this analysis is, however, that when the Court is hearing
200 cases and there is an absolute difference in ideology scores of one, there is a .20 probability
that a member of Congress will propose Court-curbing legislation. This is quite a substantial
Marino 23
number regardless of context, but when the rarity of Court-curbing is taken into account, this is
even more striking.
Given the above mentioned results, it is clear that this model statistically demonstrates
that as a member of Congress becomes more ideologically opposed to a Supreme Court and as a
Supreme Court hears more cases, there is an increased probability of Court-curbing.
Furthermore, when these two independent variables occur simultaneously, their effects are
magnified and in continued support of this paper’s theoretical arguments and hypotheses.
Conclusion
The members of the Supreme Court and Congress are rational and strategic political
actors who are routinely in competition with each other and whose institutions are inherent
rivals. With this in mind, it is not surprising that the members of these institutions will routinely
attempt to curb the influence of the other in order to ultimately achieve their policy preferences.
In the case of Congresspersons, this curbing takes the form of Court-curbing legislation, which
hitherto has remained largely unstudied by political scientists.
The phenomenon of Court-curbing is best understood as a Congressperson’s reaction to
threats to their institutionally-based authority and their policy preferences. Both of these threats
occur when the Supreme Court is hearing a relatively larger number of cases and thus exerting a
greater presence in the realm of policy creation, given that the Court is an inherent institutional
rival of Congress. Furthermore, a Congressperson with an asymmetrical ideological position to
that of the Court is likely to fear that the Court will generate policy outcomes that are against his
or her interests and act accordingly by attempting to threaten the Court with Court-curbing
legislation, which has been demonstrated to lead to a retreat on the part of the Court (Clark,
Marino 24
2009). These occurrences and theoretical causes of Court-curbing legislation have been argued
for and statistically supported by this paper, thus furthering the scientific understanding of how
the Supreme Court and Congress interact and compete within the sphere of American politics.
Marino 25
Table 1: Logit Regression Analysis
Model
One
Idea Divergence
Cases Heard
Laws Struck
Idea Div x Cases
Law Lagged by 1
year
Logit Regression
B
SE
3
0.607
0.014
0.003
-0.067
0.0474
n/a
P
***
***
n/a
n/a
Controls
Jud Com
Seniority
Party
Court Idea
0.13
-0.027
0.007
-0.364
0.595
0.016
0.002
1.911
Constant
N
-7.779
9115
0.594
Log Likelihood
-624.06
2
Chi
0
* p<.05; ** p<.01; *** p<.001
Model
Two
Logit Reg with Independent
Interaction
B
SE
P
5.358
2.239
*
0.02
0.007
**
-0.068
0.048
-0.0163 0.015
***
0.113
-0.027
0.007
-0.127
0.596
0.016
0.002
1.918
-8.738
9115
623.476
0
1.071
***
Model Three
Logit Reg with Laws
Lagged
B
SE
P
2.796
0.691
***
0.0151
0.003
***
n/a
n/a
0.139
0.093
0.399
-0.017
0.007
-1.081
0.601
0.017
0.002
1.997
7081
488.928
0
**
Marino 26
Table 2: Predicted Effect on Likelihood to Propose
Divergence
Margin SE
0
0.005 0.001
0.25
0.01 0.001
0.5
0.02 0.002
0.75
0.042 0.009
1
0.084 0.028
* p<.05; ** p<.01; *** p<.001
P
Cases
Margin SE
***
100
0.01
0.001
***
125
0.014
0.001
***
150
0.02
0.002
***
175
0.027
0.004
***
200
0.037
0.008
P
***
***
***
***
***
Table 3: Predicted Combined Effect on Likelihood to Propose
Divergence
Cases Margin SE
0
100
0.003 0.001
0.25
125
0.01 0.001
0.5
150
0.028 0.003
0.75
175
0.079 0.019
0.75
200
0.108 0.029
1
175
0.153 0.051
1
200
0.201 0.067
* p<.05; ** p<.01; *** p<.001
P
***
***
***
***
***
**
**
Marino 27
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