Why Does a Conservative Court Rule in Favor of a Liberal Government? The Cohen-Spitzer Analysis and the Constitutional Scheme

Posted: 6 Nov 2000

See all articles by Daniel J. Gifford

Daniel J. Gifford

University of Minnesota - Law School


This paper accepts the explanation by Cohen and Spitzer that the high executive-branch win rate before the Supreme Court is, in significant part, the result of the executive's careful selection of the cases for which it seeks review. It considers whether the executive's strategizing over its certiorari petitions can be viewed as attempts to aggrandize power, and if so, whether executive attempts to aggrandize power can legitimately be placed in a context in which all government institutions are attempting to aggrandize their own powers. This paper further considers whether, if the Court is attempting to expand its powers, it is taking a short or a long term perspective, and how the criteria for power expansion might differ, depending upon which perspective predominates. After exploring the institutional capabilities of the President and the Court, the paper concludes that the President's comparative advantage lies in the formulation of policies for the short-run and the Court's comparative advantage lies in dealing with issues involving the allocation of power among government institutions, issues, of course, in which the Court is not a disinterested observer. The paper argues that the public benefits from executive strategizing over certiorari decisions, because that strategizing constrains the Court from overturning popular policies. The paper rejects the contention, sometimes made, that the executive ought to cooperate in bringing before the Court those cases which the Court wishes to hear. Rather, the paper argues, executive strategizing is a necessary concomitant of the constitutional structure and is behavior specifically contemplated by the Framers. The paper employs the techniques of positive political theory in support of these conclusions. Finally, the paper shows that government strategizing over appeals is consistent with traditional practices in the executive branch, with caselaw concerned with executive autonomy, and with the politics of interbranch relations as they have manifested themselves over history.

Suggested Citation

Gifford, Daniel J., Why Does a Conservative Court Rule in Favor of a Liberal Government? The Cohen-Spitzer Analysis and the Constitutional Scheme. Available at SSRN: https://ssrn.com/abstract=248863

Daniel J. Gifford (Contact Author)

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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