Opportunity and Overrides: The Effect of Institutional Public Support on Congressional Overrides of Supreme Court Decisions

Published date01 September 2017
Date01 September 2017
Subject MatterArticles
Political Research Quarterly
2017, Vol. 70(3) 632 –643
© 2017 University of Utah
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DOI: 10.1177/1065912917709353
Public and scholarly interest in the public’s support for
the US Supreme Court has blossomed in recent years.
Journalistic accounts of the court’s support have sug-
gested that the court’s support at the beginning of this
decade reached perilously low levels (e.g., Pew Research
Center 2013). Gallup reported in 2014 that only 30 per-
cent of Americans had a “great deal” or “quite a lot” of
confidence in the institution (Riffkin 2014). This low
level of public confidence marked a historic low for the
judiciary (McCarthy 2014).
Given the wealth of social scientific evidence empha-
sizing the vital nature of public support to institutions
(e.g., Easton 1975; Caldeira and Gibson 1992), these
reports suggest that the court’s position as an equal part-
ner in governance may be in grave danger should these
levels of support continue (cf. Bartels and Johnston 2013;
Gibson and Nelson 2015). After all, courts rely on other
actors to implement their decisions, and low public sup-
port increases the likelihood of legislative noncompli-
ance, making it less likely that the court’s decisions are
implemented (Vanberg 2005). The legislative electoral
connection provides the mechanism: if legislators fail to
implement the decisions of a popular court, they may suf-
fer harmful electoral consequences; as the court’s support
declines, so do the costs of legislative noncompliance
(Carrubba 2009; Stephenson 2004). Hence, because both
the court lacks implementation power and public support
affects legislative compliance, low levels of public sup-
port put the judiciary at risk of impotency.
Yet, the court’s decisions are open to renegotiation long
after initial compliance is achieved. Once a high court
issues a decision, that ruling represents the state of the law
until either the legislature or that same court takes actions
that overrule that decision. Even without nullifying a deci-
sion, the legislature can continue to respond to the deci-
sion, subsequently taking actions that either strengthen or
weaken that opinion’s legacy (Barnes 2004; Staudt,
Lindstädt, and O’Connor 2007). While congressional
responses to US Supreme Court decisions are fairly rare—
less than 5 percent of US Supreme Court decisions are
eventually overridden—these responses to Supreme Court
decisions are substantively important. In the last two
decades, Congress has used this power to negate US
Supreme Court decisions on issues ranging from civil
rights, intellectual property, illegal immigration, and equal
709353PRQXXX10.1177/1065912917709353Political Research QuarterlyNelson and Uribe-McGuire
1The Pennsylvania State University, University Park, USA
2University of Illinois, Urbana, USA
Corresponding Author:
Alicia Uribe-McGuire, University of Illinois, 1407 W. Gregory Drive,
Urbana, IL 61801, USA.
Email: aburibe@illinois.edu
Opportunity and Overrides: The Effect
of Institutional Public Support on
Congressional Overrides of Supreme
Court Decisions
Michael J. Nelson1 and Alicia Uribe-McGuire2
Existing theories of legislative-judicial relations emphasize the role of public support for the judiciary on the likelihood
of legislative compliance. Although Congress can strengthen or weaken the Supreme Court’s decisions after initial
compliance, the role of public support for the judiciary on subsequent legislative action is unclear. We develop a theory
of legislative-judicial interactions, which suggests that Congress considers the court’s current level of public support
when determining whether to override a Supreme Court decision. We test our theory using data on congressional
overrides of US Supreme Court decisions, finding that high levels of public support for the court shield the court
from hostile congressional action. The results underscore the vital role played by the public in interbranch relations,
suggesting that public support plays a role in the legacy of a judicial decision beyond ensuring initial compliance.
judicial politics, interbranch relations, public support, congressional override

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