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

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8 The Journal of Law, Economics, & Organization. V0 N0 (A) Inside Legislative Equilibrium H J S P (B) Outside Legislative Equilibrium H S P J Figure 1. Context and the Separation of Powers. H=House. S=Senate. P =President. J=Supreme Court. In this Figure, the House is the Left Pivot and the President is the Right Pivot. 4.1 The Median Justice and the Legislative Equilibrium The first condition that must be met for the Court to behave strategically turns on the location of the median justice relative to the legislative equilibrium. Figure 1 provides a graphical explanation. The House, Senate, President, and Supreme Court are all placed along this spectrum. The Court’s relation to these actors is critically important. Figure 1A shows a Court that is inside the legislative equilibrium. The Court in this example is more conservative than the House (the Left Pivot) and Senate but is less conservative than the president (the Right Pivot). Under this configuration, the Court can set policy at its ideal point, J, regardless of where the status quo is located because J is protected. If the House tried to pass override legislation anywhere to the left of J the president (and Senate ) would block it. Conversely, if the president proposed override legislation to the right of J, the House would block it. Stalemate results, with the Court able to pursue its sincerely held policy goals. 8 Figure 1B represents a situation in which the Court may be constrained because it is outside the legislative equilibrium. Here, the Court is more conservative than both the Left and Right Pivots and may be vulnerable to override and punitive legislation, depending on where the status quo is located. That is, whether the political branches pursue such legislation depends on the location of the status quo. 4.2 Policy Change and the Status Quo If the Court median falls outside the legislative equilibrium, the Court may find itself in an unconstrained, semi-constrained, or constrained regime, depending on the location of the status quo. 9 Figures 2 and 3 illustrate. J represents the median justice’s ideal point. SQ represents the status quo policy the Court is being asked to review. L is the leftmost pivotal member of the legislative process. R is the rightmost legislative pivot. SQ ∗ L represents the Left 8. The current example ignores the veto override. I test the impact of the veto override below. 9. For a well-developed discussion on the concept of “regimes,” see Moraski and Shipan (1999).
Supreme Court Agenda Setting in a System of Shared Powers 9 Regime 1—Unconstrained W R (SQ) W L (SQ) * SQ J L R SQ L * SQ R Regime 2—Constrained W R (SQ) W L (SQ) J SQ L R SQ L * SQ R * Figure 2. Context and the Separation of Powers. J=Court Median. SQ=Status Quo. L=Left Pivot. R=Right Pivot. SQ ∗ L =Left Pivot’s Indifference Point Vis-a-vis SQ. SQ ∗ R =Right Pivot’s Indifference Point Vis-a-vis SQ. W L(SQ) is the “preferred-to set” of SQ for the Left Pivot. W R (SQ) is the “preferred-to set” of SQ for the Right Pivot. Pivot’s indifference point relative to the status quo. That is, it reflects the policy that the Left Pivot enjoys just as much as the status quo. SQ ∗ R is the Right Pivot’s indifference point relative to the status quo. W L (SQ) is the “preferredto set” of SQ for the Left Pivot—the set of policies that the Left Pivot prefers to SQ (Bonneau et al., 2007, 893). W R (SQ) is the “preferred-to set” of SQ for the Right Pivot—the set of policies that the Right Pivot prefers to SQ. In Regime 1, even though the median justice resides outside the legislative equilibrium, the Court is unconstrained and can render a decision at its ideal point. That is, should the Court grant review to the case, it will be able to modify the status quo to its ideal point, J. Why is this the case? The Court resides within both the Left and Right Pivot’s preferred-to sets relative to SQ. Thus, a sincere decision by the Court will make both Pivots better off than the status quo. When the Court renders its decision at J, it shifts policy closer to both pivots. The result is an improvement for the key legislative actors. 10 The political actors will not respond with override legislation in such a scenario. Because the Court’s ultimate policy J is better than the status quo for the Court and the key Pivots, it will grant review. In Regime 2, the Court is constrained and will decline to review the case. The Court is more liberal than the status quo which, in turn, is more liberal than the Left and Right Pivots. If the Court granted review to the case and rendered a decision at J, the result would be a net policy loss for the key pivots. 10. I assume that transaction costs prevent Congress and the president from overriding the Court’s decision—that Congress and the president will not seek to override judicial decisions that they regard as an improvement over the status quo. This assumption addresses the endogeneity issue of why the status quo is where it is. That is, it addresses the fact that Congress and the president simply found themselves unable to change the status quo to a policy within the current legislative equilibrium.
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