Supreme Court Agenda Setting in a System of Shared Powers Ryan ...

20 The Journal of Law, Economics, & Organization. V0 N0
Spriggs, 2004), the results here strongly suggest that the Court does not heed
the preferences of Congress and the president.
How might scholars and policymakers respond to a Court potentially out of
line with majoritarian preferences? One response is to do nothing. An independent
Court, after all, may provide a safeguard against the tyranny of popular
passions. As Alexander Hamilton stated, judicial independence guards
the Constitution and the “minor part of the community” from “those ill humors
which the arts of designing men” legislate (Hamilton, 1788). Besides,
the Court median fell outside the legislative equilibrium no more than 13 terms
between 1953 and 1993, depending on the legislative model studied. Rotation
in office, it would seem, largely keeps the Court majoritarian (Dahl, 1957).
Attacking the Court for its counter-majoritarian decisions may stir up more
trouble than it is worth.
An alternative response, however, would challenge the Court either through
term limits or other Court curbing bills (Calabresi and Lindgren, 2006b,a).
Such a regressive response might force the Court to adopt positions more in
line with current majorities. Indeed, if the Court stays majoritarian because
of frequent rotation in office, policymakers may wish to ensure routine rotation.
In its absence, the Court could drift from contemporary majorities and
find itself competing with dominant political regimes (Calabresi and Lindgren,
2006b). If justices fail to respond to SOP influences in a systematic manner
over a long enough time period, the Court might become the target of political
retribution (Eskridge, 1991). Indeed, some legal scholars even argue that: “[i]n
the long run, majorities in America will always have their way” (Rosen, 2006,
xiv).
In the end, then, these results speak both to the empirical debate about
whether the Court is counter-majoritarian, as well as the normative debate
about how to treat such an institution. Empirically, the data paint a clear picture
of a Court which fails to consider legislative and executive preferences
when setting its agenda. Normatively, these findings may be a virtue or a vice,
depending on one’s predispositions. Nevertheless, these results are surely important
to those with a stake in the outcome.