THE DECLINE OF SUPREME COURT DEFERENCE TO THE PRESIDENT.

• Author: Epstein, Lee

1. PRESIDENTS IN THE SUPREME COURT 835 A. The Justices 837 B. The President 838 C. The Private Litigants 840 II. THE CONVENTIONAL STORY MEETS DATA 842 III. PRESIDENT WIN RATES 845 IV. EXPLANATIONS FOR THE DOWNWARD TREND 847 A. Ideological Divergence 848 B. Executive Overreach 850 C. A More Aggressive Supreme Court 852 D. Higher Quality Opponents 856 V. CONCLUSION 859 Scholars of presidential power agree that the presidency is an extraordinarily powerful institution, and that it is a far more powerful institution today than it was in the past. During most of the nineteenth century, the presidency was largely an administrative institution that took orders from Congress. Aside from the earliest presidents, who helped set precedents for presidential power, only Andrew Jackson and Abraham Lincoln, in both cases acting in unusual conditions, exercised significant power. All of this changed in the twentieth century. Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt turned the presidency into an administrative and foreign policy powerhouse, while Congress and the Judiciary were shoved to the side. After World War II, the "imperial presidency" was consolidated. (1) The modern imperial president determines domestic policy using powers delegated by Congress, and implements it using the vast federal bureaucracy. (2) A standing army and foreign service bureaucracy enable the president to dominate foreign relations. (3)

   Law professors have traced the growth of presidential power in legal doctrines that have been put into place by the courts. The Supreme Court initially resisted the creation of an administrative state controlled by the president. It struck down broad delegations of policymaking and judicial power from Congress to the executive branch in the 1930s. (4) But it reversed itself after Roosevelt threatened to pack the Court. In recent decades, the Court further expanded the president's power by, among other things, requiring courts to defer to regulators' reasonable interpretations of the law and to their evaluations of the facts. (5)

   The Court has also either approved of, or declined to block, the president's expansion of power to conduct foreign relations. (6) A range of doctrines require courts to defer to the president's interpretation of treaties, to block private litigants from challenging national security policies, and to stay out of "political" disputes between Congress and the president, which presidents typically win. (7) In the view of some scholars, the only legal check on the president's power to conduct foreign relations is Congress's power to withhold funds, which is often impractical. (8)

   Political scientists also agree that the president's power is vast--in domestic and foreign relations alike. Terry Moe and William Howell, for example, emphasize the ways in which constitutional norms and ordinary politics give the president advantages in conflicts with the other branches of government. Politically, as the focus of public attention, the president can rally the public to his side. And constitutionally, as the leader of the bureaucracy, the president often has the "power of unilateral action": he can implement a policy, then force Congress to respond. (9) For example, despite the formal legal constraints embodied in the War Powers Act, (10) the president can commit military forces abroad and then dare Congress to defund them, which it rarely does. Congress and the courts are slow-moving, decentralized institutions which labor under the public eye. The president commands a hierarchy which enables him to move swiftly, secretly, and decisively. A skillful president uses this advantage to circumvent legal constraints imposed by the other branches.

   The president's extraordinary power gives him significant advantages in disputes with private litigants. The executive branch litigates in the Supreme Court far more frequently than any other person or entity. It benefits from an expert, experienced Supreme Court litigator--the solicitor general (SG). And, independent of the power of the president's legal arguments, the Court may be reluctant to rule against the president. The president is a uniquely powerful figure as an embodiment of the will of the people in a democracy. He may refuse to comply with the Court's judgments if he disagrees with them. And the president, working with Congress, has the legal means to retaliate against the Court if it does not do his bidding--by restricting its jurisdiction and limiting the funding of the Judiciary, for instance.

   If the presidency is enormously powerful--if it benefits from numerous legal doctrines that require deference, and can maneuver around others because of its political advantages--then one would expect the president to prevail in the Court with great frequency. (11) This view is consistent with empirical political science literature finding consistently high success rates of the president in the Supreme Court. (12) During his years in office, Franklin Roosevelt won almost two-thirds of his 850 cases; Ronald Reagan did even better, prevailing nearly 80% of the time. Some commentators worry about the president's success, while others applaud it, (13) but neither side questions the dominating force that is the executive branch.

   However, we have discovered that the president's success rate in the Supreme Court peaked during the Reagan administration and has declined steadily since then. George H.W. Bush's win rate was 70%; Bill Clinton's was 63%; George W. Bush's was 61%; and Barack Obama's was 52%. This until-now unknown trend raises significant questions, and may force us to rethink the deeply entrenched academic assumption about the rise of presidential power. Is it possible that presidential power reached its apex in the Reagan administration, and has diminished since then? Or is something else going on?

   Law professors who take for granted presidential dominance in the Court may be overly influenced by formal doctrine. There is some evidence that the Chevron doctrine has been applied opportunistically--when a majority of the Court agrees with the president and not when it disagrees with him. (14) There is also, as a matter of formal doctrine, some indications that in recent years the Supreme Court and the lower courts have begun to cut back on deference to the president, both in foreign relations (15) and in domestic administration. (16) It is also possible that scholars of all types have focused on salient events while disregarding the more humdrum business of governing. Clinton, for example, went to war in Serbia in defiance of Congress, but also failed to implement key elements of his domestic agenda, like health care reform, and instead adopted the Republican Congress's conservative agenda as his own. This allowed him to declare political victory while actually implementing policies--like welfare reform--that he did not champion, at least initially. George W. Bush used executive power aggressively against Al Qaeda, but also, to an extent that has often been downplayed by scholars, relied for authority on an enormous amount of new legislation enacted by Congress while succumbing to congressional pressure over coercive interrogation and other policies where there was disagreement. Obama's most important accomplishments were legislative--the stimulus bill, the Dodd-Frank Act, and the Affordable Care Act--and took place when Democrats controlled both houses of Congress. Through the rest of his presidency, he fought a rearguard action to protect these accomplishments, and used regulatory powers to make incremental changes that Congress refused to legislate in the areas of climate regulation and immigration.

   Of course, one could make the opposite argument by focusing on the successes and downplaying the failures. Maybe we should count Obama as powerful because he was able to issue climate regulations, enter the Paris climate treaty, and refuse to deport many thousands of unauthorized immigrants in defiance of Congress. Scholars often disagree about whether the president is very powerful or very weak. (17) The real problem is methodological: how exactly do we measure presidential power?

   In this Article, we measure presidential power by looking at the president's win rate in the Supreme Court. This measure is obviously only partial, and is subject to a number of limitations that we discuss below. But it has a major advantage, which is that it is easily determined and compared across presidents. After presenting more historical background in Part I, in Part II we explain our data and present our main findings. In Part III, we turn to possible explanations for our results.

   We examine four such explanations. The first is that the Supreme Court has become a more powerful and self-confident institution in recent decades. Commentators have argued that the Court has become more "activist" over the years, in the sense of more willing to strike down statutes. (18) If so, it is possible that an activist Court would also rule against the president more frequently We find some evidence consistent with this theory.

   Next, we investigate the possibility--widely discussed in the press and the academic literature--that presidents have become more aggressive. If so, then it is possible that even without changing its traditional pro-president doctrine, the Court may have ruled against the president with greater frequency because the president's actions have violated legal norms with greater frequency. However, we do not find evidence for this theory.

   Third, we examine the possibility that recent presidents have done poorly in the Court because they happen to have faced Supreme Court justices who are ideologically predisposed against them. We can eliminate this explanation as inconsistent with the data.

   Finally, we consider the possibility that presidents have done poorly because of the growth of a specialized Supreme Court bar, which has eliminated the...