Ducking Trouble: Supreme Court Agenda-Setting and Congressional Constraint

51 Pages Posted: 3 Jul 2006

See all articles by Anna Harvey

Anna Harvey

New York University Department of Politics

Barry Friedman

New York University School of Law

Date Written: June 28, 2006

Abstract

In recent years a great deal of attention has been devoted to the nature of the strategic interaction between the Justices of the U.S. Supreme Court and members of Congress. In particular, several studies have asked whether the Court moderates its rulings when faced with an ideologically hostile Congress.

Epstein et al (2002) extend this analysis of interbranch interaction to the agenda setting or certiorari stage of the Court's decisionmaking. They ask whether the Supreme Court is constrained in its certiorari decisions by the ideological composition of the sitting Congress. Specifically, they ask whether the Court is more likely to issue constitutional as opposed to statutory rulings when it faces an ideologically distant Congress, or when it is unable to insulate itself from congressional pressure via opinion supermajorities. They find evidence in support of both these propositions, and conclude that the Court is indeed constrained by congressional preferences at the certiorari stage.

We question the logic of the Epstein et al research design given recent evidence that the Court is constrained by congressional preferences even in constitutional cases. We also reexamine the Epstein et al findings using more sophisticated estimates of preferences scaled in interinstitutional space, and find no evidence that the proportion of constitutional rulings issued by the Court is responsive to congressional preferences. We then follow an alternative research strategy of testing the influence of Congress on the Court's agenda by estimating the probability that the constitutionality of a congressional statute will be reviewed by the Supreme Court, conditional on the expected utility gains to the median Justice from the final ruling on the merits. Using this research design we find strong support for the hypothesis that the Court is constrained by congressional preferences at the certiorari stage.

Suggested Citation

Harvey, Anna and Friedman, Barry, Ducking Trouble: Supreme Court Agenda-Setting and Congressional Constraint (June 28, 2006). Available at SSRN: https://ssrn.com/abstract=913668 or http://dx.doi.org/10.2139/ssrn.913668

Anna Harvey (Contact Author)

New York University Department of Politics ( email )

19 W. 4th St.
New York, NY 10012-1099
United States

Barry Friedman

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
64
Abstract Views
767
PlumX Metrics