Emerging Multi-Institutional Analyses:
 Congress and the Courts

  Jamie L. Carson, Michigan State University
  Kirk A. Randazzo, Michigan State University

Receiving far less attention, however, are questions of how institutional developments are linked to powers of the three governmental branches, especially during interbranch interaction. Similar to the way in which political context plays a role in shaping the internal dynamics of a single institution, we should expect the "rules of the game" to influence and constrain the behavior of actors across multiple institutions. Thus, the system of shared and separated powers, stipulated by the U.S. Constitution, structures the relationships and interactions among the three branches of government. Members of Congress, for instance, may be unable to achieve their most preferred policy outcome since the president has the constitutional authority to veto bills, thus preventing them from becoming law. Likewise, presidential appointments to the Supreme Court must be approved by the Senate, which provides a constitutional check on the authority of the chief executive.

In this essay we focus specifically on the relationship between Congress and the Judiciary, briefly highlighting recent empirical and formal analyses that examine interactions between these institutions. These interactions involve Senate confirmations of judicial nominees, judicial review of legislative statutes, and congressional overrides of Supreme Court decisions. We then conclude with comments on prospective topics for future research and draw attention to a number of potentially interesting research questions. 

Interactions among governmental branches initially involve the nomination and confirmation of judges to the federal courts. Article II § 2 of the U.S. Constitution stipulates the procedure whereby the president nominates an individual to a federal judicial position and the Senate confirms this nomination through a majority vote. The dynamics of this appointment process has continuously captured the attention of scholars, who have produced numerous descriptive accounts detailing various nominations (Chase 1972; McFeeley 1987; Allison 1996; Barrow, Zuk and Gryski 1996; Goldman 1997). Several empirical and formal analyses indicate that the timing of nominations (Segal 1987) and the preferences of interest groups and constituents (Segal, Cameron and Cover 1992) influence whether the Senate votes to confirm. Additionally, Moraski and Shipan (1999) demonstrate that the President may be constrained by Court and Senate medians.³ While the majority of presidential nominations to the federal bench are confirmed by the Senate, Martinek, Kemper and Van Winkle (2002) provide evidence that political volatility may occur during the confirmation process, which is manifested in the length of time it takes the Senate to process a nomination.

This political volatility may linger when the governmental branches intersect in other areas. According to Corwin (1957, 171), the constitutional structure of the U.S. government generates an "invitation to struggle" among the coordinate branches as each vies for additional powers. One such struggle involves statutory interpretation, where the Supreme Court has "come to occupy a central role in shaping the rules and procedures by which government operates" (Hettinger and Zorn 1999, 1). When the Court applies judicial review and declares legislation unconstitutional, Congress can - and frequently does - respond.⁴ The responses available to Congress range from the introduction of legislation pertaining to statutory clarification to constitutional amendments aimed at overturning the recent decision. Thus, Congress and the Court have entertained a "continuing colloquy" over the meaning of the law (Paschal 1992).

To analyze instances of interbranch conflict, scholars increasingly rely on separation of powers models.⁵ These models examine a series of sequential moves by different political actors through spatial and empirical analyses of policy preferences. Each actor can unilaterally alter a status quo point by moving the policy position closer to his ideal point. Subsequent decisions involve reacting to the previous move and model equilibria are derived by calculating a Pareto optimal range such that "there does not exist an alternative point that makes everyone else at least as well off" (Krehbiel 1988, 271). In terms of congressional-judicial relations, separation of powers models inform us that Congress will pass new legislation overriding Supreme Court decisions that fall outside of its Pareto optimal range. Additionally, since the justices of the Court recognize this behavior, they will anticipate such congressional action and consequently modify their decision to avoid an override (Hettinger and Zorn 1999, 3). 

Given the frequency of research incorporating separation of powers models we have a better understanding of the factors that induce institutional conflict as well as those that affect the outcome. Overall, Congress does not frequently overturn the Court (Stumpf 1965; Henschen 1983), though members often introduce legislation attempting to do so (Paschal 1992; Martin 2001). Consequently, Supreme Court justices remain relatively free to vote their sincere policy preferences without fear of reversal (Segal 1997, 1998). However, successful attempts at overrides generally result when an identifiable ideological split exists on the Court (Eskridge 1991a; 1991b) or when the number of amicus curiae participants increases (Ignagni and Meernik 1994; Meernik and Ignagni 1995).

While these studies provide a thorough understanding of the institutional factors shaping congressional responses, we do not yet have a solid theoretical explanation pertaining to the motivations of individual members of Congress. First, how should we model Congress? The separation of powers models often treat Congress as a unitary actor, or a bicameral actor. This treatment often masks important, underlying patterns of behavior since Congress is a "they" not an "it" (Shepsle 1992). If the relationship between Congress and the Court involves "a highly dynamic process sometimes overlooked by those who conceptualize these branches in purely formal terms" (Campbell and Stack 2001, xiii), then our models must account for the variation in individual motivation and behavior. Second, the separation of powers models assume that legislators do not experience transaction costs when voting to override the Supreme Court. Martin (2001) discovered that tangible costs exist which severely constrain the roll call behavior of members of Congress. Additionally, Hibbing and Theiss-Morse (1995) argue that Congress is the least respected branch, according to public opinion, and the Supreme Court is the most respected. Therefore, if members of Congress attempt to override the Court they could encounter a political backlash from the public. Consequently, our models should include the assumption that individual members will be hesitant to upset the separation of powers. Finally, and most importantly, if members of Congress are reluctant to override Supreme Court decisions, what factors might encourage them to overcome this hesitancy?

Certain empirical analyses have begun to address these issues. For example, Clark and McGuire (1996) and Carson and Randazzo (2001) provide evidence that members of Congress are influenced by electoral considerations as well as individual ideological preferences. Neither of these conclusions is overly surprising. As Mayhew (1974) argues, members of Congress are motivated first and foremost by their desire for reelection, and therefore engage in three specific types of activities related to this desire: advertising, credit claiming and position taking. For the purposes of congressional overrides of the Supreme Court, actions initiated by individual members can be viewed as a position taking activity. Regardless of whether a bill is reported out of committee and voted on the floor, the mere introduction of legislation in Congress responding to a decision by the Court serves as an opportunity for legislators to issue a "public enunciation of a judgmental statement" (Mayhew 1974, 61). If one or more legislators disagree with the provisions of the Court's decision, a bill introduced in either the House or the Senate sends the message to constituents that the decision has not gone unnoticed by Congress (Paschal 1992). Indeed, taking a public position on legislation that never reaches the floor may be less costly than actually taking a recorded vote, since it accomplishes many of the same objectives.⁶

However, when members are expected to cast a vote involving a potential override of the Supreme Court, electoral pressures exert a greater influence. The relative degree of "safeness" in a legislative district may influence the representative's sensitivity to electoral pressures. Individuals winning the previous election by a wide margin will possess more political capital to spend on potentially controversial decisions, unlike their electorally vulnerable colleagues, who must maintain a closer connection with their reelection constituency. The latter may wish to respond to the Court; however, they cannot risk alienating their district and are therefore constrained from exercising their personal preferences. Moreover, Carson and Randazzo (2001) demonstrate that this pattern is more pronounced in the House than the Senate, particularly among freshmen members elected by wide margins who otherwise would not vote to overturn the Court. 

Our attempt in this essay is to raise awareness of the importance in examining interbranch interactions by highlighting a few examples of empirical and formal research addressing essential questions. We do not claim to provide an exhaustive account of the "neoinstitutionalist" literature nor those analyses focusing on multiple institutions. Our examples are intended to illustrate the larger issues surrounding multi-institutional studies, particularly those dealing with Congress and the Judiciary. Further work in this mode is needed to gain a better understanding of these dynamic relationships. Additionally, questions pertaining to direct and indirect attempts at curtailing judicial authority are ripe for future scholarship (see e.g., Murphy 1962, 1964; Kay 1981; Rice 1981; De Figueiredo and Tiller 1996, and Carson and Kleinerman 2001). As the constitutional invitation to struggle persists among political actors and across institutions, it will be incumbent upon scholars to increase our understanding of the "continuing colloquy."

Notes

1. For a sample of the burgeoning literature on institutions, see March and Olsen 1984, 1989; North 1990; Rockman 1994; Orren and Skowronek 1994; and Soltan, Uslaner, and Haufler 1998.

2. See, for instance, McCubbins and Sullivan 1987; Bach and Smith 1988; Shepsle and Weingast 1987, 1995; Oleszek 2001.

3. See also Johnson and Roberts (2001) for an empirical and spatial examination using the filibuster pivot point rather than the Senate median. 

4. Occasionally the Supreme Court will invite a response from Congress in the language of the majority opinion (see Hausegger and Baum 1999).

5. For a thorough discussion of relevant separation of powers models see Segal 1997, 1998.

6. As Mayhew (1974: 62) asserts in his discussion of the benefits of position taking, "The congressman as position taker is a speaker rather than a doer. The electoral requirement is not that he make pleasing things happen but that he make pleasing judgmental statements. The position itself is the political commodity."

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Kirk A. Randazzo is a Ph.D. candidate in Political Science at Michigan State University and a research assistant in the Program for Law and Judicial Politics. Email address: randazz8@msu.edu