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

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6 The Journal of Law, Economics, & Organization. V0 N0 colleagues (see, e.g. Maltzman, Spriggs and Wahlbeck, 2000) and, perhaps, the political branches (Epstein and Knight, 1998; Rosenberg, 1991). Of course, this begs the question, why would the Court follow congressional and presidential preferences? One answer to this question turns on the appointment process. Dahl (1957) argues that judicial decision making is majoritarian because presidents and senators, on average, nominate and confirm a new justice every two years. Since politicians can only be expected to appoint justices whose ideologies track their own, the Court should be composed of justices sympathetic to the policy aims of the ruling majority (Rehnquist, 1987). As a result, the Court rarely—if ever—will render decisions in a manner counter to the majority’s policy goals. Indeed, this assumption largely undergirds recent attacks on lifetime tenure (Calabresi and Lindgren, 2006a). A second answer—the one made by strategic SOP theorists—argues that the Court will buckle under congressional and executive preferences because the political branches have the constitutional authority to punish the Court and pass legislation that alters its policies (Epstein, Knight and Martin, 2001). Congress can initiate and support constitutional amendments to overturn judicial decisions. It can reduce the Court’s budget, alter its composition, strip it of jurisdiction, regulate Court procedure, hold judicial salaries constant, and impeach justices (George and Epstein, 1992). Perhaps most importantly, Congress can pass legislation that overrides Supreme Court decisions. Since 1975, each Congress has overridden an average of roughly twelve statutory interpretation decisions and, during the same time period, nearly half of the Court’s decisions received some type of congressional hearing (Eskridge, 1991; Ignagni and Meernik, 1994). These data suggest that Congress has the ability to respond to Supreme Court decisions it dislikes and, if it so chooses, to act swiftly. Presidents also, the story goes, may influence the Court. “Even the members of the Court not appointed by the sitting president understand that the president’s status as a nationally elected official and his position at the reins of every executive branch agency make him a formidable foe under any circumstance” (Yalof, 2005, 501). Presidents can refuse to enforce the Court’s decisions and order Cabinet Secretaries and other high-ranking officials to ignore them. They can unilaterally create their own executive policies and shift the policy status quo (Moe and Howell, 1999; Black et al., 2007), mobilize interest groups to attack and undermine the Court’s decisions (Peterson, 1992), and use their agenda-setting power to focus public scrutiny on judicial decisions. And, of course, they can sign or veto override legislation. In sum, strategic SOP theorists argue that the combination of these powers— even the threat of their use—will force the Court to anticipate how Congress and the president will respond to its decisions and make policy in compliance with majoritarian preferences. (Spiller and Gely, 1992; Bergara, Richman and Spiller, 2003; Harvey and Friedman, 2006; Epstein and Knight, 1998). According to these scholars, if the Court (i.e., the Court median) perceives that by voting for its most preferred alternative it will create policy out of step with key policymakers, it will moderate its decision so as to make policy that is more favorable to them. Influence from the elected branches, then, forces the
Supreme Court Agenda Setting in a System of Shared Powers 7 Court into majoritarian compliance. Largely ignored from these analyses, however, is whether the Court will simply decline to review cases that will place the Court at risk. 4. Modeling a Constrained Court I model the conditions under which the Court might grant or deny review to cases due to an SOP constraint. As I describe more fully below, two conditions must be met before the political branches can constrain the Court. First, the Court median must have an ideal point outside the legislative equilibrium—the policy space in which there are no alternative points that make all legislative actors at least as well off (Hettinger and Zorn, 2005, 7). Second, the Court’s decision must make Congress worse off than the existing status quo. When these two conditions are met, the Court will be constrained. The models used to test the strategic SOP theory make the following assumptions: All actors have continuous, single-peaked, symmetric preferences on a unidimensional policy scale and prefer policy that is closest to their ideal points (Sala and Spriggs, 2004). There exists a status quo that can be measured on the same unidimensional scale. All actors know each others’ preferences and the policy location of the status quo (Harvey and Friedman, 2006). Since the actors’ preferences are categorized fully by the model, they will choose equilibrium strategies even when their votes are not pivotal (Sala and Spriggs, 2004). Further, the Court can be expected to set policy at the median justice’s ideal point (Martin, Quinn and Epstein, 2005). 5 The pivotal legislative actors will pursue override legislation only when the Court changes policy in a manner that is worse for them. 6 And, finally, justices want to avoid legislative overrides. 7 5. This assumption is grounded in theoretical and empirical work. Hammond, Bonneau and Sheehan (2005) proposed what they called the “Bench Median model.” The model argues that after a free competition among the justices over draft opinions, the median justice’s position wins out. The equilibrium result is that no matter who drafts the majority opinion, the Court’s policy reflects the preferences of the median justice (see also Martin, Quinn and Epstein, 2005). Recent empirical work provides support for the Bench Median model (Bonneau et al., 2007). While Bonneau et al. (2007) also propose an “Agenda Control” model which suggests that the policy content of the Court’s opinions is determined by the preferences of the opinion author, conditioned on his or her need to acquire a majority to set precedent, that model is unhelpful at the agenda-setting stage because justices have no a priori knowledge of who will write the majority opinion (Hammond, Bonneau and Sheehan, 2005, 224). It is worth noting, however, that even under the Agenda Control model, the median justice’s preferences play a critical role by constraining the location of the opinion to the median justice’s preferred-to set of the status quo, making the median absolutely essential. 6. As stated above, this assumption deviates from the assumption made by Owens (2008), who assumed zero transaction costs associated with override legislation. 7. This assumption accords with the assumptions made in nearly all existing SOP models (see, e.g. Segal, 1997; Spiller and Gely, 1992; Gely and Spiller, 1990; Harvey and Friedman, 2006; Sala and Spriggs, 2004; Bergara, Richman and Spiller, 2003). An interesting line of studies analyzes how justices might enlist the aid of Congress in the pursuit of their goals (Spiller and Tiller, 1996; Hausegger and Baum, 1999).
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