The Limits of Judicial Independence ( Political Economy of Institutions and Decisions )

Publication series ：Political Economy of Institutions and Decisions

Author： Tom S. Clark;

Publisher： Cambridge University Press‎

Publication year： 2010

E-ISBN: 9781316920909

P-ISBN(Paperback): 9780521194884

P-ISBN(Hardback): 9780521194884

Subject： D034 State institutions;D52 世界政治制度与国家机构

Keyword：政治、法律

Language： ENG

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Description

This book examines the relationship among the US Supreme Court, Congress, and the public. This book examines the relationship among the US Supreme Court, Congress, and the public. Contrasting most studies of Court-Congress relations in the United States, the book argues that the Court's primary concern is protecting its institutional legitimacy and securing compliance with its decisions. This book examines the relationship among the US Supreme Court, Congress, and the public. Contrasting most studies of Court-Congress relations in the United States, the book argues that the Court's primary concern is protecting its institutional legitimacy and securing compliance with its decisions. This book investigates the causes and consequences of congressional attacks on the US Supreme Court, arguing that the extent of public support for judicial independence constitutes the practical limit of judicial independence. First, the book presents a historical overview of Court-curbing proposals in Congress. Then, building on interviews with Supreme Court justices, members of Congress, and judicial and legislative staffers, the book theorizes that congressional attacks are driven by public discontent with the Court. From this theoretical model, predictions are derived about the decision to engage in Court-curbing and judicial responsiveness to Court-curbing activity in Congress. The Limits of Judicial Independence draws on illustrative archival evidence, systematic analysis of an original dataset of Court-curbing proposals introduced in Congress from 1877 onward and judicial decisions. 1. Introduction; 2. A political history of Court-curbing; 3. Conditional self-restraint; 4. Court-curbing and the electoral connection; 5. Public support and judicial review; 6. Ideological implications of Court-curbing; 7. The limits of judicial independence. '… the strength of [this] book lies in its recognition that judicial independence is ultimately as much about politicians as judges. Real world politics are at the heart of Clark's book, together with his recognition that many congressional practices, even those that lack any formal legal effect, hold profound significance for lawyers and judges. By drawing attention to what we might term 'the politics of judicial independence', this book is an important contribution to the regrettably still too thin literature on judicial independence.' Graham Gee, Public Law

Chapter

1.1 Politics and judicial independence

1.1.1 Between Legal Rules and Telephone Justice

1.1.2 The Separation-of-Powers Model

1.1.3 Breakdowns in Judicial Independence

1.1.4 Judicial Legitimacy and the Separation of Powers

1.2 Diffuse support and judicial legitimacy

1.2.1 Court-Curbing and Judicial Independence

1.2.2 The Politics--Legitimacy Paradox

1.3 A roadmap to the book

2 A Political History of Court-Curbing

2.1 The politics of court-curbing

2.2 Antebellum court-curbing

2.2.1 Marbury and Confrontations in the Early Republic

2.2.2 Conflicts from Jackson through the Civil War

2.3 Court-curbing since reconstruction

2.3.1 Court-Curbing Bills

2.3.2 Types of Proposals

2.3.3 Historical Trends

2.3.4 Who Court-Curbs?

2.4 Seven periods of court-curbing

2.5 Conclusion

3 Conditional Self-Restraint

3.1 Building a theory of court--congress interactions

3.1.1 The Court

3.1.2 Congress

3.1.3 Two Objections

3.2 Formalizing the argument

3.2.1 Model 1: Decision-Theoretic Setting

3.2.2 Model 2: Fixed Public Opinion

3.2.3 Model 3: Variable Public Opinion

3.3 Empirical implications

3.3.1 Hypotheses

3.3.2 Empirical Tests

3.4 Conclusion

Mathematical appendix

4 Court-Curbing and the Electoral Connection

4.1 Examining the patterns

4.1.1 Public Opinion and Bill Introduction: Aggregate Patterns

4.1.2 Public Opinion and Bill Introduction: Individual Patterns

4.1.3 Ideology and Court-Curbing

4.2 Testing the predictions

4.2.1 The Introduction of Court-Curbing: Aggregate Patterns

4.2.2 The Introduction of Court-Curbing: Individual Patterns

4.2.3 Court-Curbing Ideology

4.3 Conclusion

Technical appendix

5 Public Support and Judicial Review

5.1 A first glance

5.2 Statistical analyses

5.2.1 Court-Curbing and Judicial Review

5.2.2 Signals about Public Support or Institutional Threats?

5.2.3 Interactive Effects

5.2.4 Controlling for Case-Level Effects

5.2.5 Implications

5.3 An illustration: the new deal revisited

5.4 Court-curbing and judicial review

Technical appendix

6 Ideological Implications of Court-Curbing

6.1 Statutory decision making

6.2 A first glance at the data

6.2.1 Judicial Ideology and Supreme Court Output

6.2.2 Incorporating Congressional Hostility

6.3 Statistical analysis

6.3.1 Court-Curbing and Statutory Liberalism

6.3.2 An Interactive Model

6.3.3 Exploring Differences among Justices

6.3.4 Discussion

6.4 An illustration: school busing

6.4.1 Brown, Race, and Schools

6.4.2 Race-Based Remedies and Political Backlash

6.4.3 Judicial Retrenchment

6.5 Conclusions and caveats

Technical appendix

7 The Limits of Judicial Independence

7.1 Understanding judicial independence

7.1.1 Court-Curbing as Position-Taking

7.1.2 The Separation-of-Powers Model Reconsidered

7.1.3 Courts in the Macropolity

7.1.4 A Countermajoritarian Court?

7.1.5 Institutions and Commitment

7.1.6 Designing a Good Court

7.2 The road ahead

7.2.1 Questions Unanswered

7.2.2 The Separation of Powers and Judicial Legitimacy

Appendix A: Elite Interview Methodology

A.1 Method

A.1.1 Gaining Access

A.1.2 Preparing and Conducting Interviews

A.1.3 Post-interview Follow-Up

A.2 Conventions

Appendix B: Court-Curbing Bills, 1877--2008

Bibliography

Index

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