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

• Date: 01 September 2019
• Author: Alyx Mark,Michael A. Zilis
• Published date: 01 September 2019
• DOI: 10.1177/1065912918798501
• Subject Matter: Articles

https://doi.org/10.1177/1065912918798501

Political Research Quarterly

2019, Vol. 72(3) 570 –583

© 2018 University of Utah

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/1065912918798501

journals.sagepub.com/home/prq

Article

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

research-article2018

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.

Email: amark@wesleyan.edu

The Conditional Effectiveness of

Legislative Threats: How Court

Curbing Alters the Behavior of

(Some) Supreme Court Justices

Alyx Mark1 and Michael A. Zilis2

Abstract

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.

Keywords

Supreme Court, separation of powers, court curbing, inter-branch politics