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

• Date: 01 February 2018
• DOI: http://doi.org/10.1111/lsq.12187
• Published date: 01 February 2018
• Author: Michael A. Zilis,Alyx Mark

ALYX MARK

North Central College

MICHAEL A. ZILIS

University of Kentucky

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 evi-

dence that micro-level factors offer an important insight into Court curbing that

institution-focused explanations alone cannot.

Although numerous studies investigate power struggles between

Congress and the federal judiciary, scholars often take a compartmental-

ized approach to the study of this interinstitutional relationship. Because

of this, we know a great deal about specif‌ic legislative threats toward the

courts and judicial responses to those threats. However, we know signif‌i-

cantly less about the factors that drive this complex separation-of-powers

dynamic. When do individual legislators decide to utilize Court-curbing

threats against the Supreme Court, and what are the consequences for the

study of the separation of powers? Some research conceptualizes Court

curbing as rooted in institutional concerns, like differences in policy pref-

erences between the branches (e.g., Whittington 2005). Other research

points to individual-level factors or partisan considerations as determina-

tive (e.g., Clark 2011). As a result, the conditions under which aggregate

dynamics (such as institutional or coalitional considerations) and

individual-level differences interact to reshape the balance of institutional

power are not well understood. We consider the divergent explanations

that scholars have proposed to explain interinstitutional power

LEGISLATIVE STUDIES QUARTERLY, 43, 1, February 2018 141

DOI: 10.1111/lsq.12187

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C2017 Washington University in St. Louis

encroachments. While no single explanation can account for all of these

attacks, we argue that micro-level factors offer an important insight into

Court curbing that institution-focused explanations alone cannot.

We test this innovation through an analysis of the introduction of

Court-curbing proposals in Congress with specif‌ic attention paid to the

micro-level underpinnings of these proposals. Previous studies of Court

curbing have focused on institutional factors, such as Congress’s ideo-

logical distance from the Court (Eskridge 1991a, 1991b; Hettinger and

Zorn 2005; Ignagni, Meernik, and King 1998), or individual factors, like

the re-election goals of members of Congress (Clark 2011; Curry 2007;

Gely and Spiller 1990; Segal 1997). Our work advances the literature by

suggesting that it is important to consider how individual and contextual

dynamics work together to shape Court-curbing behavior.

Our account of the importance of micro-level factors is based on

the insight that Court curbing largely serves as a messaging, or position-

taking, tactic for individual legislators (Mayhew 1974). As proposals to

sanction the Court rarely become law (Farganis 2009), members likely

utilize these threats publicly to convey “symbolic messages” to a variety

of audiences—including their constituents, parties, and the Court

itself—in order to shore up support, display expertise, and inf‌luence

behavior (Devins 2006, 1339). As such, we contend that Court-curbing

behavior is best understood as a product of an individual member’s

incentives to propose threats to the Court given her goals and the context

in which she operates. The importance of this approach stems from the

fact that focusing on a limited set of indicators, such as those measuring

institutional conf‌lict, obscures others that may drive the decision to

reshape institutional authority. In other words, Court curbing is an action

that is undertaken by individual lawmakers, not the institution as a

whole. We contribute to the Court-curbing literature by explaining its

roots in the behavior of individual lawmakers and the context in which

they work, rather than solely as a result of Congress’s goals as an

institution.

Understanding the process through which attempts to redistribute

interinstitutional power are made possesses important implications for

our understanding of the separation of powers. We argue that the bulk of

the current literature, which views attempts to reshape this balance as a

product of institutional conf‌lict between courts and the legislature, is

underspecif‌ied. At its root, the proposal of Court-curbing legislation is

an individual-level behavior, and we contend that this behavior can be

constrained or enhanced by the institutional and partisan context. For

instance, we show that because lawmakers use Court curbing as a

position-taking strategy, their behavior can be better understood by

142 Alyx Mark and Michael A. Zilis