The Decline of Supreme Court Deference to the President

29 Pages Posted: 7 Mar 2017 Last revised: 24 Mar 2017

Lee Epstein

Washington University in St. Louis - School of Law

Eric A. Posner

University of Chicago - Law School

Date Written: March 6, 2017

Abstract

According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the Solicitor General’s office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, which won nearly 80% of the cases, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate, barely 50%. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to growing self-assertion of the Court and the development of a specialized private Supreme Court bar. We find no evidence for two other possible explanations — that the trend is due to greater executive overreaching than in the past, or ideological disagreements between the Court and the presidency.

Suggested Citation

Epstein, Lee and Posner, Eric A., The Decline of Supreme Court Deference to the President (March 6, 2017). University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 800; U of Chicago, Public Law Working Paper No. 618; Washington University in St. Louis Legal Studies Research Paper No. 17-03-04. Available at SSRN: https://ssrn.com/abstract=2928222

Lee Epstein

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

HOME PAGE: http://epstein.wustl.edu

Eric A. Posner (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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