Goldilocks and the Supreme Court: Understanding the Relationship between the Supreme Court, the President, and the Congress

Goldilocks and the Supreme Court

Understanding the Relationship between the Supreme Court, the President, and the Congress

Michael A. Bailey and Forrest Maltzman

The relationship of the Supreme Court to the president and Congress reflects a fundamental tension inherent in the judicial branch. On the one hand, the Court needs to be independent; disputes need to be resolved on their merits and not on the basis of political or economic power. Otherwise, those in power may be tempted to act above the law and, among other misdeeds, may perpetuate their control even when they do not have popular support. On the other hand, the Supreme Court cannot be too independent. If it is, justices may be imposing the views of nine individuals about law and policy on a nation of hundreds of millions of people. In short, the Court is a Goldilocks institution: it must be independent enough to protect democracy, but not too independent lest it threaten the ability of people to govern themselves.

As the highest court in the land, the United States Supreme Court frequently finds itself pulled in both directions. The Court gets the most complicated, politically sensitive and high-profile cases and these are precisely the cases where justices should be independent. Nonetheless, we worry that justices may become disconnected from the will of the people and prevent democratic institutions from deciding important policy issues of the day.

We focus on how the Court navigates its relationship with the elected branches. There are four mechanisms for elected branches to influence the Court: appointments, judicial deference, overrides, and expertise. We will consider each in turn. In contrast to those who believe justices are completely independent, we argue that there are layers of constraints on the Court and that each allows the national will to influence what the Court does. None is overwhelming and each mechanism has its own subtleties, but taken together it is clear the Court must be understood as it operates within a broader political and normative system.

The Appointment Process

The appointment process is a focal element of the relationship between the Court and the public for a good reason. This is the most obvious and direct chance for the president and Senate to affect the composition of the Court (Devins and Fisher 2004, 46). Certainly the rituals of the process—the thrilled nominee standing next to the president in the Rose Garden, the press scrums and camera flashes of the confirmation hearings—have become a part of the political fabric of this country.

Appointments only occur, however, when there are vacancies and these vacancies only occur when a justice leaves. If justices left randomly or at fixed terms, the timing of vacancies would not be that interesting. However, justices’ departures are endogenous; they are potentially the result of political calculations by justices.

Therefore we begin with departures. No one doubts that justices are aware of the political implications of their retirements. Conservative Chief Justice Taft delayed retiring from the Court in the late 1920s because he thought President Hoover was “a Progressive just as [Justice] Stone is, and just as [Justice] Brandeis is and just as [Justice] Holmes is” (Ward 2003, 120–121). Liberal Chief Justice Earl Warren retired in the last months of the Johnson presidency because he believed that Richard Nixon would win the 1968 presidential election (Whittington 2009). On election night in 2000, Justice O’Connor’s husband revealed that his wife wanted to retire, but not under a Democratic president (Toobin 2007, 168) and most observers believed it was not a coincidence that liberal Justice Stevens retired under President Obama.

If justices are politically savvy, it is conceivable that they could time their retirements so as to maximize the chances that they are replaced by similar justices (Spriggs and Wahlbeck 1995). Liberal justices would delay retiring under Republican presidents and retire more readily under Democrats; conservative justices would do the opposite. As a consequence, we would expect to see justices leaving voluntarily under presidents of their own party and holding out, and when this went on too long, dying under presidents of the other party. In fact, this is what we have seen: from 1789 to 2006, 35 of the 54 justices who resigned voluntarily did so under a president of the same party as appointed them while 29 of the 49 justices who died while on the bench did so under a president from the opposing party (Calabresi and Lindgren 2006, 805).

If this happened a lot, the appointment process, for all the attention it generates, would give departing justices the ability to help craft the Court. This has led some legal scholars to propose 18-year fixed terms for each justice; this would ensure a new appointee every two years so that every president elected to a full term would get at least two nominations (avoiding the situation of President Carter who did not make a single appointment to the Supreme Court in his four years in office). While this situation would defuse the kind of manipulation discussed above, it would also dramatically increase Court turnover, a potentially destabilizing development. And, Bailey and Yoon (2011) show in simulations that even if justices do try to time their retirements for political reasons, liberal and conservative justices more or less offset each other, meaning that the net effect of politically-timed retirements on the Court is modest.

Once a seat opens up, the Court is at the center of one of its most public phases: the appointment process. Earlier chapters in this volume have gone into great detail on this process, so we focus largely on what the process means for the ability of elected branches to influence the Court. Political scientists Bryon Moraski and Charles Shipan (1999) offer a widely-used and incredibly useful framework for thinking about the process. They build on the observation of one of the great scholars of the appointment process, Henry Abraham, who concluded that “political and ideological compatibility has arguably been the controlling factor” behind nominations (1999, 3). Following standard models of the Supreme Court, they characterize the ideology of justices in terms of “ideal points” in policy space, which are numeric characterizations of the political preferences of justices. Some justices, such as Justices Breyer or Sotomayor, are liberal and have ideal points that are negative numbers (on the left if you draw them on a line); other justices, such as Justices Scalia and Thomas, are conservative and have ideal points that are positive numbers (on the right if you draw them on a line). The median justice can dominate the Court and get outcomes he or she wants because he or she can be the decisive vote for either the liberal or conservative outcome. In this view, if either side wants to win it must do what the median justice wants lest the other side gets there first.

From this perspective, what is most important when a vacancy opens up is what happens to the Court median. Will it move to the right? Or the left? Or stay the same? Moraski and Shipan (1999) note that if the president and Senate are both liberal and if the vacancy that has occurred is either at or to the right of the Court median, then the president can nominate and the Senate confirm a new justice who is on the left such that the new Supreme Court median is the justice who had been the fourth most liberal justice before the departure. If the president and Senate are both conservative, then the president can nominate and the Senate confirm a new justice who is on the right such that the new Supreme Court median is the justice who had been the sixth most liberal justice before the departure (the justice just to the right of the median). If the president and Senate are on opposite sides of the ideological spectrum, then the only nominee who will be confirmed is one who maintains the status quo: the model predicts that a liberal president will not nominate a justice who moves the Court median to the right and a conservative Senate will not confirm a justice who moves the Court median to the left.

Under this model, the Court can be controlled, slowly, perhaps, but clearly by the elected branches. As the public moves right, it is more likely to elect conservative presidents and senators and hence to create the conditions to move the Court right. As the public moves left, it is more likely to elect liberal presidents and senators and hence to create the conditions to move the Court left. This is more or less the pattern that Yale political scientist Robert Dahl observed in 1957 and the pattern that persists today.

However, at least three factors make the process unpredictable. First, elections may be decided on matters unrelated to the Court, so even if, for example, the public thinks the Court is too liberal, they may elect liberal senators for other reasons. Second, presidents may be able to use their ability to nominate justices who have non-ideological attributes that make them politically appealing. This can enable presidents to nominate someone who may not be ideologically compatible with the Senate but whom the Senate confirms nonetheless. For example, in 1991 the Republican President George H.W. Bush faced off against a Democratic Senate over the replacement of liberal Justice Thurgood Marshall who had retired due to declining health. In normal circumstances, the Moraski and Shipan model would predict a liberal replacement, as such a justice would not move the Court median. In this case, however, Bush tapped Clarence Thomas, who was very conservative, but also African American. Senators who may have been turned off by Thomas’ ideology were attracted to the idea of making sure that there was at least one African American on the nation’s highest court and hence Thomas likely garnered more support than he would otherwise have received (although accusations of sexual harassment against him worked to reduce his support as well). Third, presidents and senators work in a world of imperfect information; strategic individuals who seek a position (including a seat on the bench) may not accurately portray how they will perform once in office.

Judicial Deference

Does political influence on the Court end with the confirmation vote? Many think it does; justices are not bound to stick to the political or legal views they expressed in the confirmation hearings and the political preferences of a number of justices (based on their votes on the Court) have moved considerably over time (Bailey 2007; Bailey and Maltzman 2011). The most prominent scholars who reject the idea that there are constraints on justices are Segal and Spaeth (1993, 2002) who have written a number of seminal works arguing that justices are best understood as unfettered political actors.

However, not everyone agrees. Justices may be bound to respect or accommodate public preferences by internal norms about the appropriate role of the Court in the political system. There is a long scholarly tradition of arguing that the lack of democratic accountability for the Court implies that justices should not overturn laws unless the laws clearly conflict with constitutional provisions (Thayer 1893; Wechsler 1959). Chief Justice John Roberts characterized this view as follows:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

(Roberts 2003)

Such views have been widespread on the bench. Justice Oliver Wendell Holmes quipped, “if my fellow citizens want to go to hell I will help them. It’s my job” (1920, cited in Howe 1953). Justice Stone noted “the truth is that I feel obliged to uphold some laws which turn my stomach” (Dunne 1977, 199). Justice John Marshall Harlan II stated

the constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process.

(Harlan 1964, 624–625)

Where do such sentiments come from? One place is Congress itself. For all the controversy that can accompany the nomination process, there is one point that unifies members of Congress: they want justices who will subjugate their personal views and defer to Congress and the Constitution whenever possible. Justice Sonia Sotomayor learned this the hard way. In 2001, well before she was nominated, she had said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” (Savage 2009). Senators honed in on this comment and Sotomayor had to repudiate her earlier speech and state her judicial philosophy as