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

• Author: Michael J. Nelson,Alicia Uribe-McGuire
• DOI: 10.1177/1065912917709353
• Published date: 01 September 2017
• Date: 01 September 2017
• Subject Matter: Articles

https://doi.org/10.1177/1065912917709353

Political Research Quarterly

2017, Vol. 70(3) 632 –643

© 2017 University of Utah

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DOI: 10.1177/1065912917709353

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Article

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

research-article2017

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

Abstract

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.

Keywords

judicial politics, interbranch relations, public support, congressional override