Court Curbing is Nothing New

In the wake of the Supreme Court's decisions on same sex marriage and the Affordable Care Act, at least two Republican presidential candidates have promised to limit the scope of federal judicial power if elected. Mike Huckabee promises to ignore Supreme Court decisions contrary to his reading of the law, vowing "As president, I will never bow down to the false gods of judicial supremacy." Ted Cruz proposed a constitutional amendment to create retention elections for Supreme Court justices. Regardless of one's views on these proposals or the candidates offering them, it is interesting to note that political efforts to limit judicial power in the United States are nothing new. My graduate student, Alison Higgins, and I write a bit about the history of court curbing in the United States and the political construction of judicial power in an chapter for the (forthcoming) Oxford Handbook of American Law and the Judiciary. Here's an excerpt:

[A]lthough Article III of the US Constitution asserts that federal “judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made…under their authority…” it adds, “with such exceptions, and under such regulations as the Congress shall make.” Likewise, the Constitution guarantees that federal judges receive compensation for their services, which “shall not be diminished during their continuance in office,” and may serve for life during “good behaviour.” The Constitution includes no provisions specifying the size, composition, structure, or resources of the federal judiciary, leaving these matters to Congress. In fact, as Geyh (2006) points out, the Constitution puts an array of tools for controlling the federal judiciary at Congress’s disposal, including: “impeaching errant judges[,]…holding their budgets hostage, ‘unmaking’ federal courts, thwarting the appointment of ‘activist’ judges, and depriving courts of jurisdiction to hear cases on politically sensitive subjects” (p. 1; see also Ferejohn 1999). 

Congressional power to curb or control federal courts was not always a museum piece. The early decades of America’s history under the Constitution offers numerous examples of Congress making use of these constitutional prerogatives to undermine or challenge the Supreme Court’s authority or independence when it ran afoul of popular majorities (e.g. Kramer 2004; Friedman 2009; Fritz 2008). Some famous examples include disbanding circuit courts (Repeal Act of 1802), postponing a Supreme Court term (Amendatory Act of 1802), impeaching a justice (Samuel Chase in 1804), manipulating the size of the Court (perhaps most cynically in the Judicial Circuits Act of 1866 and the Judiciary Act of 1869), and abrogating a Supreme Court decision with a constitutional amendment (the Eleventh Amendment superseding the Court’s holding in Chisolm v. Georgia [1793] that Article III, Section 2 of the U.S. Constitution eliminated states’ sovereign immunity from private claims).

Indeed, the impulse to curb the Supreme Court when it acted against the preferences of popular majorities persisted well into the twentieth century. Both Presidents Roosevelt, for example, advocated ultimately unsuccessful plans to counter what they saw as excessive judicial independence. During his 1912 bid to return to the White House, Theodore Roosevelt championed a constitutional amendment that would have allowed Congress to overrule Supreme Court decisions that invalidated federal laws. In 1937, Franklin Roosevelt offered a plan that would have allowed him to appoint a new Supreme Court justice for each member of the Court over seventy years and six months old.

These episodes of muscular court curbing are mostly early deviations from a trend of greater deference to the Supreme Court by Congress and growing judicial independence and institutionalization (Kramer 2004; McGuire 2004; Segal and Spaeth 2002). Yet, they underscore a critical point: judicial authority as it exists in contemporary American politics is a fluid “political construction” rather than a firm constitutional structure (Graber 2005; see also, e.g., Clark 2009; Friedman 2009; Lovell 2003; McMahon 2004, 2011; Keck 2004; Kramer 2004; Whittington 2007; Ura and Wohlfarth 2010). In other words, independent judicial authority in the United States was established and is sustained by political processes rather than constitutional fiat.

Political Science Resources on the Supreme Court's Same-Sex Marriage Cases or Ten Things You Should Read to Understand the Supreme Court’s Same-Sex Marriage Cases

As we head toward the Supreme Court’s decision in the same-sex marriages cases consolidated in Obergefell v. Hodges later this spring, here are some links to recent work in political science on the Supreme Court and the political consequences of its decisions.

“Trying to Get What You Want: Heresthetical Maneuvering and U.S. Supreme Court Decision Making.”
by Ryan C. Black, Rachel A. Schutte, and Timothy R. Johnson
Political Research Quarterly (2013)

Abstract: Riker famously theorized that political actors faced with suboptimal outcomes might be able to garner a more desirable one by adding issues to the agenda. To date, limited support for Riker’s theory of heresthetics exists, primarily consisting of case studies and anecdotal evidence. We offer a systematic analysis of heresthetical maneuvers in the context of Supreme Court decision making. We argue justices who oppose a potential case outcome may add alternative issues to the record in an effort to restructure the terms of debate. Data from justices’ behavior during oral argument support Riker’s theory.

“The Legitimacy of the U.S. Supreme Court in a Polarized Polity”
by James L. Gibson
Journal of Empirical Legal Studies (2007)

Abstract: Conventional political science wisdom holds that contemporary American politics is characterized by deep and profound partisan and ideological divisions. Unanswered is the question of whether those divisions have spilled over into threats to the legitimacy of American political institutions, such as the U.S. Supreme Court. Since the Court is often intimately involved in making policy in many issue areas that divide Americans—including the contested 2000 presidential election—it is reasonable to hypothesize that loyalty toward the institution depends on policy and/or ideological agreement and partisanship. Using data stretching from 1987 through 2005, the analysis reveals that Court support among the American people has not declined, nor is it connected to partisan and ideological identifications. Instead, support is embedded within a larger set of relatively stable democratic values. Institutional legitimacy may not be obdurate, but it does not seem to be caught up in the divisiveness that characterizes so much of American politics—at least not at present.

“The Semiconstrained Court: Public Opinion, the Separation of Powers, and the U.S. Supreme Court's Fear of Nonimplementation”
by Matthew E.K. Hall
American Journal of Political Science (2014)

Abstract: Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in “vertical” cases (those involving criminal and civil liability) than in “lateral” cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases—those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices' fear of nonimplementation and is, therefore, dependent on institutional context.

“The Supreme Court’s Many Median Justices”
by Benjamin E. Lauderdale and Tom S. Clark
American Political Science Review (2012)

Abstract: One-dimensional spatial models have come to inform much theorizing and research on the U.S. Supreme Court. However, we argue that judicial preferences vary considerably across areas of the law, and that limitations in our ability to measure those preferences have constrained the set of questions scholars pursue. We introduce a new approach, which makes use of information about substantive similarity among cases, to estimate judicial preferences that vary across substantive legal issues and over time. We show that a model allowing preferences to vary over substantive issues as well as over time is a significantly better predictor of judicial behavior than one that only allows preferences to vary over time. We find that judicial preferences are not reducible to simple left-right ideology and, as a consequence, there is substantial variation in the identity of the median justice across areas of the law during all periods of the modern court. These results suggest a need to reconsider empirical and theoretical research that hinges on the existence of a single pivotal median justice.

“Court Decisions and Trends in Support for Same-Sex Marriage”
by Patrick Egan and Nathan Persily
The Polling Report (2009)

Abstract: The trends in public support for same-sex marriage should interest both those concerned about public attitudes toward gay rights and those with a larger interest in the way court decisions help shape public opinion. The political and legal dynamics of the same-sex marriage debate, as well as the public opinion response, are unique. Nevertheless, analogies to other legal contexts, such as abortion, desegregation and interracial marriage, help define the stakes in this debate and the potential directions in which public opinion may turn. Our own research, as spelled out in our book Public Opinion and Constitutional Controversy (Oxford 2008), suggests that the public is growing increasingly more amenable to same-sex marriage and that judicial decisions are unlikely to reverse that trend.

“The Swing Justice”
by Peter K. Enns and Patrick C. Wohlfarth
Journal of Politics (2013)

Abstract: In the Supreme Court’s most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This article makes two theoretical contributions to the study of the swing justice and this justice’s resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court’s most closely divided decisions, which are typically thought to reflect the Court’s most ideologically driven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public’s preferences, and case-specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor—whether on the Supreme Court or any other decision-making body—can lead to incorrect conclusions about the determinants of policy outputs.

“Justices and Legal Clarity: Analyzing the Complexity of U.S. Supreme Court Opinions”
by Ryan J. Owens and Justin P. Wedeking
Law and Society Review (2011)

Abstract: Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions, while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity in majority or concurring opinions. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

“Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases”
by James W. Stoutenborough, Donald P. Haider-Markel, and Mahalley D. Allen
Political Research Quarterly (2006)

Abstract: The theoretical and empirical debate over the ability of the U.S. Supreme Court to influence public opinion through its decisions is far from settled. Scholars have examined the question using a variety of theoretical perspectives and empirical evidence, but there is no theoretical consensus, nor are the empirical studies without methodological weaknesses. We enter this debate in an attempt to bring some clarity to the theoretical approaches, overcome some of the methodological shortcomings, and bring a yet unstudied issue area, Court decisions on gay civil rights, under scrutiny. We argue that the ability of Court decisions to influence public opinion is a function of the salience of the issue, the political context, and case specific factors at the aggregate level. At the individual level these factors are also relevant, but citizen characteristics must also be taken into consideration. Our analysis of aggregate level and individual level opinion does indeed suggest that Court decisions can influence public opinion. However, the ability of Court decisions to influence public opinion is conditional. Our findings lend support to the legitimation hypothesis and the structural effects model. We conclude with a discussion of the implications of our findings and suggestions for future research.

“Backlash and Legitimation: Macro Political Responses to Supreme Court Decisions”
by Joseph Daniel Ura
American Journal of Political Science (2014)

Abstract: This article is a first attempt to develop and assess the competing predictions of the thermostatic model of public opinion and legitimation theory for the responses of public mood to Supreme Court decisions. While the thermostatic model predicts a negative relationship between the ideological direction of Supreme Court decisions and changes in public mood, legitimation theory predicts that changes in mood should be positively associated with the ideological content of the Court's actions. I assess these rival expectations by modeling the dynamic relationship between mood and cumulative judicial liberalism. The model estimates indicate a complex interaction between the Court and the mass public characterized by short-term backlash against Supreme Court decisions in mood followed by long-run movement toward the ideological positions taken by the Court. The results emphasize the legitimacy of the Court in American politics and point to a unique role for the Court in shaping public opinion.

“The Supreme Court and Issue Attention: The Case of Homosexuality”
by Joseph Daniel Ura
Political Communication (2009)

Abstract: Previous studies have shown that a small number of Supreme Court decisions that “rearrange[d] the … distribution of political benefits” have drawn the media's attention to the underlying issues involved in those cases. This article provides an additional test of that empirical claim, examining the effects of the Supreme Court's gay rights cases on media coverage of homosexuality from 1990 to 2005. The data indicate that Supreme Court decisions that expanded the scope of gay rights increased coverage of homosexuality in both The New York Times and USA Today, while cases that affirmed the existing scope of gay rights had no such effect.

Income, Turnout, and Inequality

The London School of Economics and Political Science's USAPP blog today features a post by Lucy Barnes explaining that higher voter turnout in the United States would be unlikely to change redistributive policies in the American states. She writes:

In recent research, I have looked at differences in government spending, and spending targeted towards the poor, across the American states. This also allows for detailed investigation of the income mechanisms involved, as the Current Population Survey provides data, representative at the state level, on both income and (reported) voter participation. From this individual-level data I constructed measures of the income of the median voter for every state-year from 1978 to 2002. In considering the relationship between median voter income, spending, and the typical aggregate measures of turnout and inequality, we can investigate whether the mechanisms purported to explain the macro-level relationships (that higher inequality and turnout drive higher spending).

First, does the income of the median voter matter for the level of government spending? I find little evidence that it does. Or rather, there is some evidence of a statistically discernible effect, but its substantive size is very small. For a thousand dollar increase in the gap between average income and the income of the median voter, annual public welfare spending per capita increases by $6! Total government spending declines with the decisive voter’s income shortfall, but again the size of these effects is tiny– around $40 for a $1000 change. This small effect size, more than the statistical insignificance of the effects, indicates that any impact of the income of the decisive voter on policy outcomes is limited. Second, if the income of voters as a whole, which depends on inequality and who turns out to vote, is the mechanism by which these factors affect spending, we should see the effects of these aggregate-level variables reduced once the direct measure is included as a predictor in the statistical model. I find no evidence that this is the case, either.

Dr. Barnes attributes the limited impact of turnout on policy outcomes to Americans' abysmal turnout rates in state elections. She argues that so many low-income voters abstain, even in high turnout states, that "the necessary relationship between higher turnout and greater equality in turnout may no longer hold." That seems plausible, but I would also add that there is some evidence showing that lower-income Americans and higher-income Americans tend to have very similar policy preferences and, as a consequence, that biases in voter turnout related to income may not produce significant bias in the policy preferences of the electorate.

Randy Balko on Eric Gardner

Eric Gardner's death and a New York City grand jury's decision not to indict the police office who caused his death by placing him a choke hold during an arrest for selling loose cigarettes demand serious reflection on the state of race relations and law enforcement. Randy Balko's thoughts on these matters are well worth your time. Among other things, Balko points out how the proliferation of regulation on our daily lives creates a opportunities for violent confrontations between police and civilians, especially in minority communities:

Every law, no matter how seemingly innocuous, is enforced with the threat of violence: If you fail to follow it, the state is saying it reserves the right to use violence to force you to comply and/or force you to submit to a penalty for violating the law. Every law passed also creates more opportunities for interaction with police officers, the people entrusted to use the violence necessary to enforce the laws. How a proposed law will be enforced, and potentially abused, ought to be considered in addition to the content of the law itself....[Moreover, l]ow-level offenses are a tool police sometimes use to do sweeps for outstanding warrants, or as part of a “broken windows” strategy of law enforcement. These are tactics overwhelmingly deployed on low-income and minority communities.

Again, the whole thing is worth your time.

No, Indiana Did Not Just Make It a Crime for Same Sex Couples to Seek Marriage Licenses

News that Indiana has just made it a crime for same-sex couples to apply for a marriage license has started to creep into my Twitter feed. The National Journal's website, for example, claims:

Lawmakers in the Hoosier State have updated a 1997 law that makes it a felony to falsify information on marriage license. So, any couple of the same sex filling out those forms would automatically violate the law since there are only sections for one male and one female.

The law now states that it is a Level 6 felony, punishable by up to 18 months in prison and a fine of $10,000. The old law had a punishment of up to three years in prison.

This is a really misleading way to frame what's happened in Indiana.

This year, Indiana updated its entire criminal code criminal code, moving from a four-tiered system of felonies to a six-tiered system. It has been a Class D felony in Indiana since 1997 to submit false information on an application for a marriage license. Class D felonies are punishable by six months to three years in prison and fines up to ten thousand dollars. After the revised criminal code goes into effect next year, submitting a false application for a marriage license will now be a Level 6 felony, the lowest tier. Level 6 felonies are punishable by up to eighteen months in prison and fines of up to ten thousand dollars.

Indiana has not updated or amended its 1997 law forbidding criminalizing false marriage applications. This law may affect same-sex couples since Indiana's marriage application includes marked spaces for a single male applicant and a single female applicant. So, a same-sex couple would have to knowingly "misrepresent" the gender of on or the other applicants in order to submit the form. Doing so might theoretically trigger the state's license falsification law, though there are, as yet, no reports of the law being applied to same-sex couples seeking to be married in Indiana. Also, it is not clear that the law could be applied to same sex couples submitting marriage applications under the terms of the First Amendment.

I do not mean to let Indiana off the hook. The state is deeply hostile to same sex marriage. Marriage has been defined by law as a union of one man and one woman only in the state since 2004, and the state legislature is currently considering action to similarly define marriage in the state constitution. It would not surprise me to learn that the 1997 marriage application falsification act was somehow aimed at forestalling same-sex marriage, but I can't find evidence either way on that issue this morning.

The point is that there is absolutely nothing new here, except Indiana's revised criminal code, which is, by most accounts, a sensible set of reforms that, among other things, makes it easier for minor crimes to be expunged from individual records and increases protections against employment discrimination for ex-convicts.