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

Date01 September 2019
AuthorAlyx Mark,Michael A. Zilis
Published date01 September 2019
Subject MatterArticles
Political Research Quarterly
2019, Vol. 72(3) 570 –583
© 2018 University of Utah
Article reuse guidelines:
DOI: 10.1177/1065912918798501
Studies of the American separation-of-powers system
tend to focus on political institutions as the unit of analy-
sis. In these works, individual actors are conceived of as
uniformly interested in making policy gains for their
branch, while avoiding rebuke from other institutions.
Yet, there are reasons to expect that individual political
actors might vary in the motivations for their behavior. As
such, some may display more sensitivity to inter-branch
conflict than others for reasons that are not well under-
stood by the current literature. If we can identify explana-
tions for heterogeneity in decision-making at the
individual level, we may also be able to better understand
the conditions under which inter-branch threats can be
effective within the separation-of-powers system.
In this paper, we exploit the Supreme Court–Congress
relationship to analyze the causes and consequences of
decisional heterogeneity for inter-branch politics. We
argue that individual justices do not equally consider sep-
aration-of-powers concerns in their decision-making, and
some justices may be more attentive to Congressional
threats than others. As a consequence, the Supreme Court
may only appear responsive at the institutional level when
justices who are externally attentive are in pivotal posi-
tions on the Court. Prior studies (e.g., Bailey and Maltzman
2011; Hall 2014; Hall and Ura 2015; Harvey and Friedman
2006; Marshall, Curry, and Pacelle 2014; Segal,
Westerland, and Lindquist 2011; but see Baum 2003) have
treated justices as implicitly homogeneous in their deci-
sion-making inputs, and we argue this assumption
obscures the individual roots of behavior (Enns and
Wohlfarth 2013, 1090; see also Baum 2015). Although it
is likely that Supreme Court justices share similar con-
cerns over institutional maintenance, we contend that the
chief justice, due to his unique positional responsibilities
(Maltzman and Wahlbeck 1996), and the swing justice,
due to her more moderate ideological position (Collins
2008), place a premium on preferences for institutional
798501PRQXXX10.1177/1065912918798501Political Research QuarterlyMark and Zilis
1North Central College, Naperville, IL, USA
2University of Kentucky, Lexington, USA
Corresponding Author:
Alyx Mark, North Central College, 30 N Brainard Street, Naperville,
IL 60604, USA.
The Conditional Effectiveness of
Legislative Threats: How Court
Curbing Alters the Behavior of
(Some) Supreme Court Justices
Alyx Mark1 and Michael A. Zilis2
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.
Supreme Court, separation of powers, court curbing, inter-branch politics

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT