Ducking Trouble: Supreme Court Agenda-Setting and Congressional Constraint
51 Pages Posted: 3 Jul 2006
Date Written: June 28, 2006
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.
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