Ideology or Interbranch Ecology: Separation of Powers and the Supreme Court’s Practice of Constitutionalism

Empirical Judicial Politics “Ideology” Attitudinal Model Judicial decision-making is best explained by a relatively small amount of information about the Justices’ perceived views before their appointment to the Court This model reduces judicial behavior to the parsimonious policy preferences of the individual. Because constitutional amendment is rare, constitutional decisions are often considered “sincere” in the attitudinal sense. “Interbranch Ecology” Rational Choice Institutionalism Institutions are intervening variables that establish bargaining situations or “parameters of choice” within which rational actors in sequence settle for the highest ranked preference in the feasible set – i.e. they engage in strategic behavior to maximize their preferred goal in light of the risks and opportunities presented by both intra- and inter- institutional constraints.

Predictions “Ideology” Attitudinal Model Predicts that members of the Court will act on sincerely held preferences regardless of the coordinate branch positions Ex. No effect. Perhaps even increased evidence of “activism” when branches are unified and opposite to the Court. “Interbranch Ecology” Rational Choice Institutionalism Predicts that the Court will react to inter-institutional constraints Ex. Divided government increases “activism”.

Research Question: A Positive Project How do interbranch relationships affect judicial behavior? (1) Do interbranch relationships affect Supreme Court decision- making? (2) Are Justices motivated by more than the desire to maximize their policy preferences – do they also take into account the ability of other political actors to reverse the Court’s decision? *applies to statutory and constitutional decision-making*

Objective To use insights from formal models to develop empirical evidence of this ecology and in particular to demonstrate if, if not how, politics affects the division of labor among the branches and the development of legal doctrine.

Stakes If the Court is responsive to her coordinate powers such evidence might inform: discussions about whether the Court is representative or “democratic” contribute to ideas about judicial “independence” offer insight into the finality of the Court’s judgments or accounts of judicial supremacy provide evidence to enrich normative accounts of “activist” or “restrained” courts

SEPARATION OF POWER GAMES

Statutory Game / Congressional Override

Statutory Game S = SENATE P=PRESIDENTH(c)= HOUSE(comm.)J = SUPREME COURT Figure 1a. Unconstrained Court Liberal __________________________________________ Conservative Policy SJ 1 PHc H Policy Figure 1b. Constrained Court Liberal __________________________________________ Conservative Policy J 1 S J 2 PHc H Policy MEDIAN JUSTICE WILL SET J 2 AS CLOSE TO HER IDEAL POINT AS POSSIBLE WHILE FORSTALLING PUNITIVE CONGRESSIONAL ACTION Pareto Set

Constitutional Game S = SENATEH = HOUSESL = STATE LEG. SC 1 = UNCONSTRAINED COURT SC 2 = CONSTRAINED COURT

Short of Amendment: Congress Can… Alter the court’s appellate jurisdiction Manipulate the number and composition of the lower federal courts Control the Court’s budget Change the size and composition of the Court by impeachment Refuse to implement Court decisions

Short of Defiance the Court Can… Deny certiorari / DIG Invoke one of the avoidance doctrines (Newdow) Choice of Law Be obtuse

Model Extension: “Disagreement Space” Figure 2a. More Disagreement Space (Divided Government) / Less Constrained Court Liberal ________________________________________Conservative Policy X Policy Figure 2b. Less Disagreement Space (Unified Government) / More Constrained Court Liberal ________________________________________Conservative Policy X Policy The “disagreement space” can be measured by taking the median of each actor and then calculating the variance of these points about the mean.

Model Extension: Identity & Disagreement Space Figure 3a. Split Legislative / Less Constrained Court Liberal __________________________________________ Conservative Policy P Hc HS Policy Figure 3b. Split Branch / More Constrained Court Liberal __________________________________________ Conservative PolicyP S HcH Policy One way to acknowledge the differential in the power to override would be to “weigh” the disagreement space so that the Senate and House were more important to the calculation of the space.

Model Extension: Conventional Measurement Figure 3a. Constraint is measured by the distance between the SC1 position and the nearest endpoint of the Pareto set (X) and (X’). X __________________________________________ SC 1 H SP(SL) X’ _______________________________________ SC 1 H S P(SL) BUT IT CANNOT JUST BE THAT THE DISTANCE FROM THE WINSET IS THE ONLY RELEVANT INFLUENCE. THE QUALITY OF THAT SET MUST ALSO MATTER.

Understanding the Insights from the Formal Model Small (Unified)Large (Divided) Inside SincereSincere / Activist Outside Strategic / EvasiveStrategic

Preliminary Regression Model – “Space” “disagreement space” Y t = B o + B 1 D space + B 2 D I/O + B 3 D interaction + B i X i,t + E t “ inside” or “outside” the set vector of control variables

Echo Effects – Dependent Variables Constitutionality of Federal Statutes Observations of SOP – Content Analysis Invocation of Avoidance Doctrines DIG Review of Landmark Legislation

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