1 COURT REWARDING AND CURBING: A BICAMERAL ANALYSIS OF INCENTIVES AND SANCTIONS BETWEEN THE UNITED STATES CONGRESS AND THE FEDERAL JUDICIARY By H. CHRIS TECKLENBURG, IV A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIV ERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2013
2 2013 H. Chris Tecklenburg, IV
3 To my wife, family and friends
4 ACKNOWLED GMENTS I owe a debt of gratitude to many for helping me through this long and arduous process. First and foremost, I would like to thank everyone on my committee. Both of my chairs, Lawrence Dodd (or Larry as most affectionately refer to him as) and Marcus Hendershot have both provided excellent professional and personal guidance throughout my time at the University of Florida, and I am grateful to them both. Beth Rosenson likewise provided great suppor t, and urged me in my first semester to stop thinking l ike a lawyer and start thinking like a political scientist. Finally, I thank both Dan broader during my prospectus defense proved useful in writing this dissertation. Seco nd, I would like to thank all of my friends at the University of Florida who have helped me along the way. I do not think that I could have made it through this process without the support from Paulina Rippere, Tristan Vellenga, Hans Schmeisser, and Wi ll H icks, to just name a few I truly feel that the entire graduate department of political science at Florida is a family of sorts, and I am thankful to all whom I was able to get to know during my time there. Finally, I would like to thank my family for thei r pa tience and support None of this would be possible without my wife, Kim, who I am grateful to more than she will ever know. My parents and grandparents also provided much needed support throughout not just this process, but also my life.
5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ .. 4 LIST OF TABLES ................................ ................................ ................................ ............ 8 LIST OF FIGURES ................................ ................................ ................................ ........ 10 ABSTRACT ................................ ................................ ................................ ................... 12 CH APTER 1 INTRODUCTION ................................ ................................ ................................ .... 14 An Introduction to Court Curbing ................................ ................................ ............ 14 An Introduction to Court Rewarding Legislation ................................ ...................... 16 Separation of Powers from the Congressional Perspective The Principal Agent Model and a Bicameral Approach ................................ ............................. 18 V ariables to be Examined ................................ ................................ ....................... 20 Remaining Chapters of the Dissertation ................................ ................................ 23 2 SEPARATION OF POWERS FROM A PRINCIPAL AGENT MODEL PERSPEC TIVE: APPELLATE JURISDICTION, THE 1925 JUDICIARY ACT, AND THE CREATION OF A PRINCIPAL AGENT RELATIONSHIP ....................... 25 Judicial Power from a Separation of Powers Perspective ................................ ....... 25 Structuring the Federal Judiciary through Appellate Jurisdiction ............................ 29 Initial Formation of the Federal Judiciary: From the Founding to 1891 ............. 29 Creating Limited Judicial Discretion during the Industrial Age: 1891 1925 .... 31 A Significant Expansion of Judicial Powers: The Judiciary Act of 1925 Background and Immediate Aftermath ................................ .......................... 35 Separation of Powers Following the Enactment of the 1925 Judiciary Act ....... 39 The Pr incipal Agent Model ................................ ................................ ...................... 42 Background: Agency Theory ................................ ................................ ............ 42 General Concepts of the Principal Agent Model ................................ ............... 43 Applications of the Principal Agent Model in Political Science ......................... 46 Applying the Model: Congress and the Courts in the Wake of a Discretionary Docket ................................ ................................ ................................ ................. 48 Initial Contract ................................ ................................ ................................ .. 50 Conflicting Goals and Shirking ................................ ................................ ......... 50 Monitoring, Sa nctioning and Incentivizing the Courts ................................ ....... 53 An Overview of the Principal Agent Model as Applied to Congress and the Courts ................................ ................................ ................................ ........... 56 Addi tional Considerations in Applying the Model ................................ .................... 60 Bicameral Differences ................................ ................................ ...................... 60 Party Structure ................................ ................................ ................................ 63
6 Concluding Comments ................................ ................................ ............................ 65 3 SEPARATION OF POWERS LITERATURE, RESE A RCH DESIGN, AND FORMAL HYPOTHESES ................................ ................................ ....................... 69 I ntroduction ................................ ................................ ................................ ............. 69 Congress Centered Studies ................................ ................................ .................... 70 Seminal Studies of Legislative Sanctions ................................ ......................... 70 Contemporary Works Examining Inter branch Interaction ................................ 74 Reconciling these Works ................................ ................................ .................. 77 Sources of Court Cur bing and Rewarding in the Era of the Modern Court ............. 79 Appropriate Time Frame ................................ ................................ ................... 80 Defining the Dependent Variables Court Curbing and Rewarding Behavior .. 80 Differences in Legislative Activity ................................ ................................ ..... 84 Data Collection ................................ ................................ ................................ 88 Methods ................................ ................................ ................................ ............ 90 Hypotheses and Independent Variables ................................ ................................ 92 Judicial Review ................................ ................................ ................................ 93 Unanimity on the Court ................................ ................................ ..................... 95 Changing Issue Agenda of the Court ................................ ............................... 97 Polarization and Partisanship ................................ ................................ ......... 101 Ideological Institutional Distance ................................ ................................ .... 104 Divided Government ................................ ................................ ....................... 106 Conclu ding Comments ................................ ................................ .......................... 108 4 THE RELATIONSHIP BETWEEN THE SENATE AND THE FEDERAL JUDICIARY ................................ ................................ ................................ ........... 115 Introduction ................................ ................................ ................................ ........... 115 Senate Court Curbing Legislation over Time ................................ ........................ 117 Initial Conservatism and the Switch in Time: 1925 1938 ............................. 118 World War, Post War Period, and the Warren Court Era: 1939 1969 .......... 123 Increasing Inter branch Dispute From Burger to Roberts: 1970 2008 ...... 129 Underlying Motivations, Results and Court Curbing Trends ........................... 135 Conclusions on Senate Court Curbing ................................ ........................... 139 Senate Court Rewarding Legislation over Time ................................ .................... 141 Initial Conservatism, and the Switch in Time: 1925 1938 ............................ 142 World War Post War Period, and the Warren Court Era: 1939 1969 .......... 145 Increasing Inter branch Dispute From Burger to Roberts: 1970 2008 ...... 149 Underlying Motivations, Results and Court Rewarding Trends ...................... 152 Conclusions on Senate Court Rewarding ................................ ....................... 155 Conclusion ................................ ................................ ................................ ............ 157 5 THE RELATIONSHIP BETWEEN THE HOUSE OF REPRESENTATIVES AND THE FEDERAL JUDICIARY ................................ ................................ ................. 180 Introduction ................................ ................................ ................................ ........... 180
7 House Court Curbing Legislation over Time ................................ ......................... 182 Initial Conservatism and the Switch in Time: 1925 1938 ............................. 183 World War, Post War Period and the Warren Court: 1939 1969 ................. 189 Increasing Inter branch Dispute From Burger to Roberts: 1970 2008 ...... 193 Underlying Motivations, Results and Court Curbing Trends ........................... 199 Conclusions on House Court Curbing ................................ ............................ 203 House Court Rewarding Legislation over Time ................................ ..................... 205 Initial Conservatism and the Switch in Time: 1925 1938 ............................. 20 7 Increasing Inter br anch Dispute From Burger to Roberts: 1970 2008 ...... 213 Underlying Motivations, Results and Court Rewarding Trends ...................... 217 Conclusion s on House Court Rewarding ................................ ........................ 220 Conclusion ................................ ................................ ................................ ............ 221 6 CONCLUSIONS INVOLVING THE RELATIONSHIP BETWEEN CONGRESS AND THE COURTS ................................ ................................ .............................. 250 A Reexamination of the Application of the Principal Agent Model ........................ 250 Explaining Different Motivations by Chamber at Controlling the Co urts ................ 252 Providing Answers to Important Questions ................................ ........................... 256 The Future Relationship between Congress and the Courts ................................ 258 Areas to Examine Further ................................ ................................ ..................... 260 LIST OF REFERENCES ................................ ................................ ............................. 264 BIOGRAPHICAL SKETCH ................................ ................................ .......................... 272
8 LIST OF TABLES Table page 2 1 Number of cases filed and signed o pinions on the United States Supreme Court, 1921 1929 ................................ ................................ ............................. 68 3 1 Relative succes s of seven high frequency court curbing p eriods ..................... 114 3 2 Court response to court curbing p eriod ................................ ............................ 114 3 3 Sources used in data c ollection ................................ ................................ ........ 114 4 1 Senate court curbing bills reported out of c ommittee, 1925 1938 .................. 161 4 2 Senate court curbing bills reported out of c ommittee, 1939 1969 .................. 161 4 3 Senate court curbing bills reported out of c ommittee, 1970 2008 ................... 162 4 4 Senate administrative court curbing bills reported out of c ommittee, 1925 2008 ................................ ................................ ................................ ................. 164 4 5 Cochrane Orcutt regression estimation results for Senate court curbing bills reported out of committee by y ear, 1925 2008 ................................ ............... 165 4 6 Senate court rewarding bills r eported out of c ommittee, 1925 1938 .............. 166 4 7 Number of sponsors of Senate court rewarding legislation r eporte d out of committee per year by p arty, 1925 1938 ................................ ........................ 168 4 8 Senate court rewarding bills reported out o f c ommittee, 1939 1969 .............. 169 4 9 Senate court rewarding bills reported out of c ommittee, 1970 2008 .............. 173 4 10 Cochrane Orcut t regression estimation results for Senate court rewarding bills reported out of committee by y ear, 1925 2008. ................................ ...... 177 4 11 Negative binomial regression estimation results for Senate administra tive court rewarding bills reported out of committee by y ear, 1925 2008. ............ 178 4 12 Cochrane Orcutt regression estimation results for non administrative Senate court rewarding bills reported out of committee by y ear, 1925 2008. ............ 179 5 1 House court curbing bills reported out of c ommittee, 1925 1938. .................. 226 5 2 Hous e c ourt curbing bills reported out of c ommittee, 1939 1969 .................... 226 5 3 House court curbing bills reported out of c ommittee, 1970 2008 ................... 227
9 5 4 House administrative court curbing bills reported out of c ommittee, 1925 2008 ................................ ................................ ................................ ................. 230 5 5 Negative binomial estimation r e sults for House court curbing bi ll s reported out of comm ittee by y ear, 1925 2006. ................................ ........................... 232 5 6 Hous e court rewarding bills reported out of c ommittee, 1925 1938 ............... 233 5 7 House court r ewarding bills reported out of c ommittee, 1939 1969 ............... 238 5 8 House court rewarding bills reported out of c ommittee, 1970 2008 ................ 243 5 9 Negative binomial estimation results for House court rewarding reported o ut of committee by y ear, 1925 2006 ................................ ................................ ... 247 5 10 Negative binomial regression estimation results for House ad ministrative court rewarding bills reported out of committee by y ear, 1925 2008 .............. 248 5 11 Negative binomial regression estimation results for non administrative House court rewarding bills reported out of committee by y ear, 1925 2008 .............. 249
10 LIST OF FIGURES Figure page 2 2 Total court rewarding legislation reported out of c ommittee, 1 925 2010 ............ 67 3 1 Judicial review (laws overturned) by y ear, 1925 2006 ................................ ... 109 3 2 Percentage of opinions with at least one dissen t by t erm, 1925 2006 ........... 109 3 3 L andmark civil liberties cases d ecided by the Supreme Court by y ear, 1925 2008 ................................ ................................ ................................ ................. 110 3 4 Land mark criminal cases d ecided by the Su preme Court by y ear, 1925 2008 ................................ ................................ ................................ ................. 110 3 5 Landmark economic cases decided by the Supreme Court by y ear, 1925 2008 ................................ ................................ ................................ ................. 111 3 6 Landmark institutional power cases decided by the Supreme Court by y ear, 1925 2008 ................................ ................................ ................................ ...... 111 3 7 Landmark original jurisdiction cases decided by the Supreme Co urt by y ear, 1925 2008 ................................ ................................ ................................ ...... 112 3 8 Polarizat ion in the House and Senate by y ear, 1925 2010 ............................... 112 3 9 Ideological institutional d i sta nce b etween the House and the Supreme Court, 1925 2008 ................................ ................................ ................................ ...... 113 3 10 Ideological institutional distance b etween the Senate and the Supreme Court, 1925 2008 ................................ ................................ ................................ ........ 113 4 1 Senate court curbing bills reported out of committee by y ear, 1925 2010 ..... 159 4 2 DW nominate value of senators sponsoring c ourt curbing legislation and the m ean DW nominate value of the majority p arty in the Senate .......................... 159 4 3 Senate court reward ing bills reported out of committee by y ear, 1925 2010 160 4 4 Mean DW nominate value of senators sponsoring court rewarding legislation and the mean DW nominate value of the majority p arty in the Senate ............. 160 5 1 House court c urbing bills reported out of committee by y ear, 1925 2008 ...... 224 5 2 DW nominate value of representatives sponsoring court curbing l egislat ion and the mean DW nominate value of the majority p arty in the House of Representatives 224
11 5 3 House court rewarding bills reported out of committee by y ear, 1925 2010 .. 225 5 4 DW nominate value of representatives sponsoring court rewarding l egislation and the mean DW nominate v alue of the majority party in the H ouse of Representatives 225
12 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy COURT REWARDING AND CURBING: A BICAMERAL ANALYSIS OF INCENTIVES AND SANCTIONS BETWEEN THE UNITED STATES CONGRESS AND THE FEDERAL JUDICIARY By H. Chris Tecklenburg, IV December 2013 Chair: Lawrence C. Dodd Co chair: Marcus E. Hendershot Major: Political Science Most studies that examine the relationship between Congress and the judiciary attempt to explain judicial behavior by analyzing whether and to what extent the Supreme Court modifie s its behavior to comport with c ongressional preferences. These studies examine the relationship between thes pe rspective, and implicitly as sume that Congress is superior. This dissertation reverses assumption explicit by utilizing the principal agent model. The application of thi s model begins with the Judiciary Act of 1925, in which Congress granted the Supreme Court discretion in selecting cases on its docket. This dissertation examines how Congress has attempted to monitor and control the judiciary following the passage of this Act. Unlike prior studies that strictly examine the Supreme c ongressional attempts to sanction it through court curbing legislation, this dissertation incorporates incentives, as it is believed that Congress may attempt to control the
13 judiciary through rewards. Also, in contrast to other studies, this dissertation uses a bicameral analysis to examine the relationship between these institutions. It is believed that differences between the chambers may cause divergent results in how each approaches its relationship with the judicial branch A n original dataset was created In order to adequately examine the relationship be tween each chamber and the judiciary The dataset identifies over 60,000 bills that were referred to a judiciary commit tee from 1925 2008. Of these bills, only those that were reporte d out of committee were coded as having curbed the judiciary rewarded it. Additional variables are included in the analysis which may affect the relationship between these institu polarization, and divided government. Results indicate that there are major differences regarding how each cham ber of Congr ess treats the judiciary are largely aimed at responding to in stitutional threats motivated by partisanship. However, both chambers appear to respond to the ver time.
14 CHAPTER 1 INTRODUCTION An Introduction to Court Curbing In 2004, the United States Supreme Court decided a significant case that raised immediate concerns among several members of Congress. This case, Elk Grove Unified School District v. Newdow the pledge of allegiance were constitutionally permissible under the First Amendment. The Ninth Circuit Court of Appeals had previously ruled that forcing school children to recite these words did in fact violate the Establishment Clause of the First Amendment. The Supreme Court, however, ultimately held that the plaintiff lacked prudential standing to assert the constitutional rights of his child, whom he had joint physical custody, but not actual legal c ustody. This decision effectively dodged the underlying question of whether the words in the pledge of allegiance were in fact constitutional. Members of Congress immediately voiced concern. Given that the Court did not fully address the First Amendment c laims, a new case could arise involving similar facts; this time being brought by a proper plaintiff having actual standing. In response, Representatives. Relevant porti ons of the Act provide that: (a) Except as provided in subsection (b), no court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpreta tion of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation. This type of provision is commonly referred to as either a jurisdiction stripping, or court curbing bill, as it would elim Pledge of Allegiance. These types of bills are extremely divisive, especially from a
15 s eparation of powers perspective, as it involves an attempt by one branch of gover nment to prohibit another from e xercising its discretion in a particular policy area. However, within our constitutional structure, Congress is permitted to enact legislation that alters the appellate jurisdiction of the Court. This immense power has been utilized several times in the pa st, but has mostly been seen as a threat or shot across the bow by Congress, to encourage the Court to rule a particular way. From a separation of powers perspective, such actions raise concern because they would place limits upon a branch of government th at was purposefully designed to be insulated from public pressures, and one that would act as a check against elected and potentially tyrannous majorities. With regard to the Pledge Protection Act, several constitutional scholars were concerned with its l anguage, and its potential impact on separation of powers, which is displayed in a letter from Robert D. Evans of the Government Affairs Office of the American Bar Association to James Sensenbrenner (R WI), who was acting chair of the House Judiciary Commi ttee. This letter, dated June 6, 2006, argued that As a matter of policy, Congress should not jettison our foundational principles because of current dissatisfaction with a controversial decision of the Supreme Court or lower federal courts by permanently stripping the jurisdiction of the federal courts to hear certain categories of cases. Rather than strengthening its legislative role, Congress, by pressing its own checking power to the extreme, imperils the entire system of separated powers. In spite of such dire warnings, the House Judiciary Committee reported the bill to the floor, where it was subsequently passed. The Senate did not follow suit. Taking note of the potential long term ramifications of such a proposal, the bill ultimately died within the Senate Judiciary Committee.
16 This interaction displays the complex nature of the legislative pr ocess as it pertains to the judiciary and involves important aspects of separation of powers and bicameralism. The differences between the chambers and th e outcome associated with each in this example indicate that there may be different motivations between the House and Senate in not only passing legislation, but in how the chambers individually approach t heir relationship with the judicial branch This di ssertation will thus examine the relationship between each chamber of Congress and the judiciary but will incorporate additional aspects that may help account for the overall inter branch relationship. An Introduction to Court Rewarding Legislation Simila r to court curbing legislation, and as yet to be examined by judicial politics scholars, it is possible that Congress may attempt to control the Court and the entire federal judiciary through offering positive incentives. Congress may believe that by rewar ding the judiciary, it may respond favorably to Congressional preferences by There are a variety of incentives that can be offered by Congress. Obviously rewarding. Another prime example If the federal judiciary is becoming backlo gged, Congress can create new courts, or add court personnel including the addition of new feder al judgeships. This rew ards the entire judiciary, and permits it to run more efficiently. However, p erhaps the best example of court rewarding legislation occurred in 1925 with the Judiciary Act. This Act created a discretionary docket that permitted the Supreme Court to choose the cases that it wanted to hear. In creating such a docket,
17 Congress utilized its constitutional power to affect the Supreme jurisdiction to relieve it of its continuing backlog in cases. This also eventually per mitted the Court to change from an instit ution that was primarily concerned with establishing the permissible scope of economic regulations, to one that w ould increasingly focus up on the protection of individual liberties. The precise scope of the Judicia ry Act and the subsequent changes involving the Court will be detailed thoroughly in this dissertation. For present purposes, it should be noted that this is a type of court reward ing measure that clearly aided the Court and the federal judiciary in the lo ng run. While some court rewarding efforts can have long lasting effects, they are generally attempts by Congress to incentivize or reward the Court and the judicial branch for its behavior, and often increase material resources available to judicial branc h actors when carrying out their duties. This contrasts wi th court curbing presented in the previous section which threatens to limit resources and hinders the federal courts from operat ing efficiently. T hese examples and definitions of court rewarding an d curbing legislation raise a variety of issues. The primary concern involves how the relationship between Congress and the judiciary has changed since the conferral of the discretionary docket. This primary issue raises additional questions, including: 1. Ho w has Congre activities since it gave the Supreme Court discretionary power? 2. T o what extent has Congres s attempted to control the federal judiciary through sanctions and rewards since the conferral of the discretionary do cket? 3. Do es Congress act in a uniform manner in curbing or rewarding the judiciary, or do differences in the chambers of Congress result in different treatment towards the judicial branch ?
18 4. How has ideology between the branches and partisanship betwee n the political parties affect Congressional oversight? This dissertation will examine these questions from the principal agent and bicameral perspectives. An explanation of these approaches is explained in greater detail throughout the following section. Sepa ration of Powers from the Congressional Perspective The Principal Agent Model and a Bicameral Approach Most scholars that study separation of powers between Congress and the judiciary typically focus on whether and to what extent members of the Supreme C ourt alter their decision to comport with the preferences of Congress (Eskridge 1991; Segal 1997; Epstein and Knight 2002; Clark 2009). Most of these studies examine the relationship between these branches by utilizing an approach focusing on judicial outc omes. However, this dissertation will reverse scope and examine this interaction from the perspective of Congress. 1 The Congressiona l decision making perspective allows for a more complete analysis that can explain why and how Congre ss attempts to control the judiciary rather than explain the end product of that strategy. Unlike prior works that only focus on Congressional sanctions such as court curbing or jurisdiction stripping legislation, this dissertation will also examine the possibility that Congres s attempts to influence the judicial branch through positive incentives. Court rewarding is an aspect of the separation of powers relationship that often is omitted but will be included in this analysis 1 While some do examine the rela tionship between these institutions by utilizing some form of Congressional legislation in their analysis, these works still seek to determine the underlying factors of why the C ourt may or may not alter its opinions, and thus still focuses on judicial dec ision making (See e.g. Harvey and Friedman 2006, 2009).
19 An additional aspect that is incorporated in this d issertation is how it conceptualizes the theoretic al relationship between the legislative branch and the judiciary. Most studies generally argue that one of the institutions will act hostile toward the other during times when the institutions are ideologic ally distant In the context of the court curbing studies, most focus on Congressional attempts to constrain the Court. Implicit in these studies is the notion that Congress is superior and hence has the power to affect the Court. This dissertation will ma ke this assumption explicit by formally ado pting the principal agent model, and will argue that Congress, as the principal, has the ability to alter the appellate jurisdiction of the Court. This immense power effectively permits Congress to control the jud iciary by determining what cases it hears. Over time, this power has been utilized several times, but most notably in 1925, when Congress created the modern certiorari process, where these institutions entered into a bargain that defined the parameters of their modern relationship. This dissertation examines the interactions that took place following this significant expansion of judicial powers. Furthermore instead of viewing the relationship between Congress and the judiciary as involving only two insti tutions, this dissertation adopts a bicameral analysis, as it is believed that there may be differences in how each chamber approaches its relationship with the judicial branch. While the precise reasons for the different treatment by the chambers will be presented in C hapter 3, I anticipate that the House will be more prone to react to decisions that it views as being adverse to its preferences, while the Senate will be more likely to exhibit hostility toward those judi cial decisions that it views as hosti le to the institution of Congress itself. These critical differences will
20 be examined by analyzing the scope and intensity of court curbing and court rewarding legislation by each chamber. Finally, it should be noted that while a bicameral approach will be employed in studying the Congressional perspective, this dissertation examines broader activity than previous studies Recall that p rior works strictly examine inter branch interaction by This study, however, will not only utilize a Congressional and bicameral approach, but in so doing will use bills that target the entire federal judiciary instead of just the Supreme Court. The inclusion of these bills are important, since at tacks and rewa rds on the lower c ourt s also play a key role in the overall relationship between Congress and the judicial branch. Most studies rightfully focus on Supreme Court behavior as it is the primary representative of the judicial branch. This position allows th e Court to play a critical role in the inter branch relationship as it often renders decisions that may conflict with Congressional preferences, w hich may result in a Congressional effort to alter judicial behavior. For purposes of this dissertation, thes e Congressional responses to Supreme Court action are important and may take the form of l ower court sanctions or rewards. Because of the interaction between Congress and the co urts, this study will focus on variables that speak to Supreme Court behavior, while also examining bills that target the entire j udicial branch Variables to be Examined This dissertation will incorporate variables that have mostly been absent in traditional separation of powers analyses. The first of these, judicial review, accou nts for instances in which the Court has declared acts of Congress unconstitutional. It is
21 anticipated that Congress would obviously be more likely to respond to instances in which the Court is striking down more of its legislation. While some of the more recent separation of powers studies include this variable (Segal, Westerland and Lindquist 2011; Clark 2009, 2011), this dissertation will also include attempts by Congress to respond to specific decisions by the Court, which are not present in these works Thus, specific responses by both institutions are included in this analysis. In addition, the dissent rate of the United States Supreme Court will be examined, as it is a nticipated that as the Court gro w s more divi ded over time, Congress may react by a ttempting to control the institution. While some have examined the nature and the causes of the dissent rate of the Court ( Epstein, Walker and Dixon 1988; Corley, Steigerwalt, and Ward 2013; Hendershot, Hurwitz, Lanier, and Pacelle 2013), and have even ex amined this variable in the context of the relationship between Congress and the Court (Nagel 1965), none have subjected it to falsifiable testing with regard to the relationship between these two institutions. This dissertation seeks to fill this gap by t horoughly examining the potential relationship between this variable and Congre Many scholars have also examined the agenda of the Court, and have noted how it has changed over time (Pacelle 1991; Lanier 2003 ; Baird 20 08 ). This transformation is critical for separation of powers studies, as it is anticipated that as the Court shifted its agenda from economic cases towards those involving civil rights and liberties, there may have been a Congressional response. Thus, whi absent in separation of powers studies, it is included in this analysis.
22 Finally, polarization has been excluded in prior separation of power studies involving C ongress and the judicial branch While most of these studies ha ve utilized some measure to test for the impact that the ideology of the institutions has on the relationship between these branches (Bailey and Maltzman 2011; Clark 2009, 2011) none have explored the possible role that the realignment of political parties and polarization may play in the process. However, including this variable is important, as it will be argued that the changing party structure has led to increasing polarization over time, which has in turn, affected the relationship between Congress and the c ourts. Thus, both party polarization and ideological institutional distance between each chamber and the Cou rt are included in this dissertation To engage in this analysis, this dissertation utilizes an original dataset that contains over 60,000 bi lls that were referred to the judiciary committee of either chamber from 1925 2008. However, unlike prior studies that focus on either the introduction of legislation, or laws passed, this dissertation focuses on the bills that were reported out of a com mittee from either chamber. The rationale behind this focus and the utilization of reported bills is that these represent the most credible threats and rewards that are likely to display interaction between the branches. After all, the cost of the mere int roduction of legislation is minimal, as any member of Congress can introduce a bill. Hence, the introduction of legislation would likely not represent a viable threat or reward to the Court, as these bills generally do not represent the true preferences of the entire Congress but rather individual members While other studies use actual laws passed, these events are relatively rare, and hence may miss some interaction between the branches. Thus, reported measures represent a middling
23 approach, which occurs more often than the mere intro duction of legislation, and is likely to capture more threatening and rewarding activity occurring between Congress and the judiciary. Remaining Chapters of the Dissertation In order to properly examine this inter branch r el ationship, Chapter 2 will provide a general outline and theoretical background regarding the changing relationship between these institutions. First, this chapter will present a general discussion regarding separation of powers, with particular emphasis be ing placed on the relationship between Congress and the judiciary. This chapter will then discuss in detail legislation on the 1925 Judiciary Act, since it is the mo agenda powers and correspondingly restructured the ongoing relationship between these institutions. This sect ion will be followed by a discussion involving the principal agent model, as it will be argued that the 1925 Judiciary Act effectively created such a relationship between Congress and the judiciary. The general principal agent model, including common concepts associated with it will be presented first, and will be followed by a section applying the model to the relationship between Congress and the judiciary following the Act. Chapter 2 will conclude with a brief historical analysis that displays the general trends regarding how Congress has attempted to sanction and incentivize the judicial branch following the alteration of the appellate jurisdiction of the Court. Chapter 3 will first present a brief literature review that will focus on the most relevant separation of powers studies involving Congress and the Court. Following this review, a research design will be presented, which wi ll explicate how the empirical
24 analysis of this dissertation will be conducted. This includes defining the appropriate time frame and the dependent variables, presenting differences in legislative activity, accounting for data c ollection and describing the methods that will be utilized to examine the relationship between these institutions. Hypotheses and independent variables will then be defined and discussed in depth. Chapter 4 and Chapter 5 will present an analysis of the i nteraction between the judicial branch, and the Senate and House respectively. Chapter 4 will focus strictly on the Senate, and will examine how the Senate attempts to control the Court both through sanctions and incentives. This analysis will include both a qualitative and quantitative account that will thoroughly examine how the independent variables identified above effect the relationship between these institutions. Chap ter 5 will replicate for the relationship with the House. This dissertation will co nclude with a chapter that offers some final encompassing thoughts on the state of separation of powers in general. The application of the principal agent model will be reexamined, and the alternative motives behind each chamber attempts to control the C ourt will be explored. Some possibilities regarding the future of the relationship between Congres s and the Court will be offered and it will conclude by presenting some possible areas that should be examined further
25 CHAPTER 2 SEPARATION OF POWERS F ROM A PRINCIPAL AGENT MODEL PERSPECTIVE: APPELLATE JURISDICTION, THE 1925 JUDICIARY ACT, AND THE CREATION OF A PRINCIPAL AGENT RELATIONSHIP Judicial Power from a Separation of Powers Perspective During the drafting of the Constitution, there was significa nt debate regarding the appropriate way to structure the new government. While there were differences of opinion, some items did manage to garner near consensus, such as the need for separation of powers (Binder 2003, 15). Evidence of this is best found in Federalist 51 which provides that each branch should have a will of its own, and have very little dependence on the others. The purpose of granting each department such encroachmen Initial ly, concern s were expressed that the legislature would inherently dominate the other branches. In such a government, if the popularly elected branch was able to assert its institutional will over the others, then tyranny of the m ajority would necessarily result. Attempts therefore were made to ensure that each branch was granted an Federalist 51, the found ers believed that In the context of the judicial branch, these defense mechanisms and constitutional safeguards to check the will of the other branches are perhaps most important, as the judiciary is desig ned to protect minority rights against tyrannous majorities that may arise within the public. In an attempt to insulate this branch from the potential effects of majoritarian preferences, the founders decided to ensure that
26 members of the judiciary were gi ven life tenure. In addition, instead of being elected by the people, federal judges were to be nominated by the executive branch, and approved by the Senate. These protections afforded to the judiciary e nsured that it would remain relatively insulated, an d thus made it the branch most able t o protect against the problems of factions and tyrannous majorities In spite of these few safeguards, the judicial branch was left without detailed checks and balances. This lack of constitutional safeguards has led ma ny to deem the viewed this institution, as displayed in Federalist 78, which asserts that, It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that is can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. However, subsequent to the drafting of the Constitution, the ju dicial branch did Marbury v. Madison (1803), which established the power of judicial review. This ability to invalidate both legislative and executive acts is a powerful c heck that arguably balances the structure of our government. Yet even with this power, the judiciary still lacks the ability to enforce its ruling, and hence is unable to force its institutional will on the other branches. 1 This places the judiciary in a p purported power depends on the other branches compliance with its decisions. Thus, although being recognized as a co equal branch of government, the judicial branch is often viewed as being subservient, as it only reta ins the power of judgment. 1 Worchester v. Georgia (1 832), his decision, now let 32).
27 This view of subservience is not only bolstered by the lack of Constitutional safeguards, but also by the lack of specific constitutional pr ovisions pertaining to the judiciary While Article III of the Constitution established the Supreme Court, and defined the types of cases that it could hear, it left many questions open with regard to the scope of power and the actual structure of the federal judiciary. In fact, the Constitution even left many aspects of judicial power up to the other branches to define, which obviously creates the potential for tension between the branches. This displays the irony in how the founders structured our government, but particularly the judicial branch. While striving to maintain some measures of i ndependence for all branches, they consequently created one with relatively undefined power that was ultimately dependent on other institutions to fill in the gaps. The primary example and result of the lack of specificity with regard to judicial power, Supreme jurisdiction. The founders likely provided this power to Congress for several practical reasons. First, it was likely intended to provide additional avenues for litigants to have their gr ievances heard in a more appropriate for um with a judge that specializes in complex topics, such as bankruptcy proceedings. In addition, it was likely intended to allow Congress to provide administrative help to the judiciary to relieve the Court as its do cket grew over time. Consistent with this notion, Congress has utilized this power several times over the past centuries to create additional judgeships and courts. However, whether it was intended or not, this power can and has also been utilized to give the Supreme Court greater discretion in the cases that it se lects, which has permitted the C ourt to define and control its own agenda. Several studies have
28 shown that the Court is able to wield great power through its decision making process, and is able to effectively shape and mold the agenda through its decisions. As Perry (1991) has shown however, the Court even has this power whether it reaches a decision in a particular case or not. In particular, the Court now has the power of those cases it deems worthy for r eview, which will define particular issues or policy areas. In choos ing its own cases, the Court may effectively shape policy conflicts by responding to the claims of litigants and expounding precedents that can and do crea te tension with the elected branches. In spite of this potentially useful tool provided by Congress to the Court, as Congress can arguably alter this power by t aking it away. More specifically, and as seen in the introduction, Congress can also utilize their control over appellate jurisdiction as an institutional weapon t o punish the Court and the entire judiciary in other ways, such as limiting jurisdiction for the court s to hear certain disputes, or even preventing it from providing administrative relief forcing judicial backlog. As Congress has this enormous power and hence can control the app ellate jurisdiction of the courts it would appear that Congress wou ld dominate the relationship between these branches However, before discus sing the exact parameters of this relatio nship it is important to first define and discuss more in depth how Congress has utilized the appellate power over time. The primary focus of the following section will therefore be placed on how Congress has attempted to fill in the blanks left in the Constitution regarding the judicial branch by creating an adequate federal judiciary. This discussion is extremely important, as it will prov ide context regarding the power
29 between these institutions, and will support the underlying theory that the relationship between these institutions may be better viewed through the lens of a principal agent model. Structuring the Federal Judiciary through Appellate Jurisdiction Initial Formation of the Federal Judiciary: From the Founding to 1891 power to affect appellate jurisdiction stems from Article III, Section 2 of the United States Constitution. 2 Historically, this Congressional power has been used sparingly, and reserved primarily for times when the Court was burdened by a backlog of cases, or when the just ices began to complain about a lack of administrative support. Thus, most acts that are passed regarding appellate jurisdiction involve attempts by Congress to expand the judiciary by creating additional judgeships or new districts/circuits, which were needed due to the growth in the country, and hence a growth in litigation. Perhaps the best account for the changing structure of the fed eral judiciary is provided by Estreicher and Sexton (1986, 8 11), who extensively detail these 1789, with the passage of the first Judiciary Act, in which Congress created a Supreme Court with six members, one federal district court in each state, and three circuit courts for the entire nation. The district courts consisted of a district judge and had only original jurisdiction, while the circuit courts contained one district judge and two Supreme Court justices, and had both original and appellate jurisdiction. During this time, while the 2 Article III, Section 2 of the United States fecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress
30 caseload itself was not burdensome, justices began to call for reform, due to the avel to the circuit courts to hear disputes. These complaints led to an amendment in 1793, which only required one Supreme Court justice to sit in each circuit. Congress again altered the construct of the federal judiciary in 1801, as they created sixteen permanent circuit court judges. This act, however was not in response to administrative concerns, but rather was political in nature, as the Federalists attempted to pack the court with their judges prior to the Jeffersonian Republicans coming into office In response, in 1802, the Jeffersonians quickly attempted to repeal the previous Act, and subsequently passed the Judiciary Act of 1802. This act increased the number of circuits, and also provided some relie f to the Supreme Court justices by permitting the Circuit panels to consist of only one judge. Following this act, most circuit courts were presided over by district judges, thus finally addressing the primary concern Following this period, m ost of the concerns voiced to Congress involving the judiciary were primarily the result of the growth and expansion of the nation. This was particularly seen with the size of the docket of cases on the Supreme Court, which grew from 51 in 1803, to 98 case s by 1810. While during the first half of the nineteenth century, Congress formed committees to examine potential improvements to be made to the judiciary, and even had prodding by the President concerning duties of the Supreme Court, few actions were unde rtaken by Congress. The only major activity during this period occurred in 1807, 1837, and 1863, when Congress increased the number of Supreme Court justices and circuits to seven, nine and ten, respectively. It
31 was not until 1869, when Congress finally fi xed the number of justices on the Supreme Court to nine (Estreicher and Sexton 1986, 10 11). In spite of these changes, the backlog of cases on the docket continued to grow throughout the nineteenth ce ntury. As Rehnquist (1986) notes the number of cases on the docket for the Supreme Court steadily increased from 636 in 1870, to 1,200 cases in 1880, to 1,816 in 1890. This growth in the docket was largely due to the economic industrialization occurring throughout the country during this time, which led to m any new disputes needing resolution. The docket ultimately grew so unwieldy, that there was a backlog of over three years for a di spute to be resolved. The mushrooming backlog led many justices to once again seek help from Congress, and led to the passage of the Circuit Court of Appeals Act of 1891, which was perhaps one of the most meaningful judicial bills during the entire nineteenth century. Creating Limited Judicial Discretion during the Industrial Age: 1891 1925 The Circuit Court of Appeals Act of 1 891 created nine Circuit Courts of Appeals, which acted as intermediaries between the federal district courts and the Supreme Court. Unlike our modern appellate system however, not all appeals went from the district court to the appeals court. For example, appeals based on questions of constitutional or federal statutory law could still be appealed directly to the Suprem e Court following the district c up the docket considerably by sending those a ppeals that involved federal jurisdiction based on diversity of citizenship to the appellate courts, followed by Supreme Court review, at its discretion. Thus, the importance of the 1891 Act lies not with the alteration of the federal judicial structure, but rather with an initial attempt at creating a process by which the Supreme Court could select some cases that it wanted to hear.
32 Taft (1925, 2) provides the best summary of the precise scope of the newly afforded discretionary jurisdiction of the Supr eme Court, as he notes that [i]n this discretionary jurisdiction, the most numerous class of cases was of those which depended upon the diverse citizenship of the parties as the basis of federal jurisdiction. Patent cases, copyright cases, Federal trade ma ke cases, admiralty cases, revenue cases, criminal cases, and most bankruptcy cases were similarly dealt with either in the original Act or by Amendments. Thus, while not affording the Supreme Court discretion in all matters, this grant of limited power in case selection greatly benefited the Court in its administration, which resulted in the dramatic decrease of the number of cases on the docket. While in 1890, there were 623 new cases on the docket, the number decreased to 379 in 1891, to only 275 in 18 92 (Rehnquist 1986, 7). Therefore, at first blush, this new Act that afforded the limited discretionary docket appeared to resolve the concerns regarding the escalating workload of the Court. This new discretion was also important as it marked an initial shift on the Court from an institution that merely heard disputes as a common law appellate court, to one that decided more important issues concerning the scope of federal power. Prior to deral equity receiverships, diversity mortgage foreclosures, diversity suits against railroads for be decided than that Following the 1891 Act, the Court soon shifted its decisions to cases involving issues of federal statutory construction. This shift was in large part due to the vast increase in Congres sional legislation following the Act. As the population grew, so too
33 did commerce and industry within the nation. Congress therefore felt the need to regulate much of the economic activity occurring in the nation. Several constitutional cases clearly illus trate the type of issues that the Court was ruling on during this period, and how they were deciding such disputes. The first the Sherman Antitrust Act of 1890. In Unit ed St ates v. E.C. Knight Co. (1895), the American Sugar Refining Company, which already controlled most of the sugar refining companies in the United States, sought to purchase stock in several other companies, including E.C. Knight. The purchase of these stock s would give control to the American Sugar Refining Company of nearly ninety eight percent of the sugar refining business in the United States. In order to prevent the sale of stock, the United States attorney general sought an injunction based on the prov isions of the Sherman Antitrust Act, which was enacted to prevent monopolies. The Supreme Court ultimately held that the sale of stock was in fact valid, and that Congress had exceeded its power under the Commerce Clause, since it was attempting to regula te intrastate (as opposed to interstate) activity. In adopting this narrow approach, the Court noted that the contracts and acts of the defendants related exclusively to the acquisition of the Philadelphia refineries and the business of sugar refining in Pennsylvania, and bore no direct relation to commerce between the states or with foreign nations ( United States v. E.C. Knight Co. 1895 17 ). Thus, the Court was indicating an unwillingness to regulate behavior under the Commerce Clause if the activity of manufacturing or production only occurred in one state. Unlike the modern approach adopte d by the Court, during the 1890 s, the Court was much more deferential to rights in this area, and found it irrelevant if the
34 activity affected the overall eco nomy. What mattered at this point was whether the activity in question occurred in one state, and therefore the Court was examining the individual parts of a corporation, instead of its entire activity. The Court continued this narrow approach for several more decades, as seen in Hammer v. Dagenhart (1918). This case involved the constitutionality of the Federal Child Labor Act of 1916, which prohibited the shipment of goods across state lines that were manufactured by companies that employed children under fourteen. A father brought suit, claiming that Congress had once again exceeded its authority under the Commerce Clause in enacting this legislation. The Supreme Court sided with the father and held once again that goods produced in one state did not amou nt to interstate commerce, and hence could not be regulated by Congress. As stated by the Court, ample, but the production of articles, intended for interstate commerc e is a matter of ( Hammer v. Dagenhart 1918 272 ). 3 These cases not only display the narrowness of interpretin g federal power during this era but are also important for illustrating the new types of cases that the Court was hearing. 4 Wit h the expansion of industry and commerce, Congress began to attempt to 3 For more information regarding these cases, and also how the Court has applied the Commerce Clause differently by era, 594). 4 It should be noted that during this era, the Supreme Court was also utilizing a similar narrow interpretive approach that favored laissez faire economics in other constitutional areas as well. For example, it was during this era when the Court consistently applied a the Court applied the Due Process Clause to strike down various forms of social legislation. The best example of this constitutional approach is seen in the decision of Lochner v. New York (1905), when the Court struck down state legislation that prohibited bakers from working more than sixty hours a week. The contract to work more. The resul t of engaging in such a narrow interpretative approach was that Congress and the states were prevented from effectively regulating the national economy. For more ien (2011, 1038 1050).
35 regulate more behavior. This increase in regulatory attempts caused the docket on the Supreme Court to once again show signs of trouble. Thus, while the 1891 Act was important in provid ing administrative relief to the Court, such relief was only temporary, as se en by the beginning of the 1920 requiring litigants to wait up to a year after filing for a judicial determination (Taft 1925, 2). This backlog likewise caused many to call for a new round of judicial reform. A Significant Expansion of Judicial Powers: The Judiciary Act of 1925 Background and Immediate Aftermath In 1921, Howard Taft was appointed Chief Justice of the Supreme Cour t. Taft was a unique leader of the Court as his politica l career and connections afforded him greater insight and access to the legislative process, which proved incredibly useful in his attempts to lobby Congress for resources and discretion ary authority In addition, his prior experience as a Yale law professor and as one of the first judges on the circuit court of appeals, gave Taft credibility as an advocate regarding the burdens on the judicial system (Estreic her and Sexton 1986, 11). d was an obvious asset in his campaign to restructure the federal judiciary. Not surprisingly, Taft wasted very little time in these efforts and enjoyed some initial success. This can be seen as in 1921, Taft and the attorney general testified in front of need for additional federal court judges. They also met with the chairmen of each judiciary committee to examine the extent of judicial backlog and caseload pressure in each distr ict. These efforts culminated in a 1922 act that authorized twenty five new judgeships. More importantly however, the new act also created the Judicial Conference
36 grow th and perform a clearance function for coordinating proposals affecting the conference required senior circuit judges to meet with the chief justice every year and giv e their opinions as to the current administrative needs as to each judicial district. Following this conference, recommendations would be made to Congress regarding any additional judgeships or other needs of each circuit. In spite of the utility of strea mlining the administration of the federal judiciary, several Democratic Congressmen were unhappy with the legislation, which they viewed as being a partisan attempt to create more Republican judgeships. In addition, they argued that this new Conference vio lated separation of powers, as it intruded on made upon the integrity and independence well to judicial s elf aggrandizement (Barrow, Zuk and Grysky 1999, 32 33). Yet, despite these protests, the bill ultimately passed through a Republican dominated Congress. Approximately during this same time, Taft was also attempting to garner much more power for the Supreme Court. While the limited di scretion afforded to the Court not to be a panacea, as the caseload conti nued to steadily increase. This led Taft to form a committee in 1921 composed of Supreme Court justices to lobby members of Congress for greater discretion and control over their docket. This initial committee was comprised of Justices Van Devanter, McReyn olds, and Sutherland, who actually drafted
37 Congress in 1922. 5 However, this bill failed to garner enough interest, as Congress had decided instead to focus its efforts on shaping the lower f ederal judiciary at this time. Once again he actively sought out collaboration with members of the House and Senate Judiciary Committee. Similar to his prior efforts in 1921, he once again appointed Justices Day, Van Devanter, and McReynolds to assist in the drafting of the reform legislation. In a somewhat rare unified front, all of the justices reviewed, approved and publicly endorsed the legislation. These efforts by the Justices were noted by the Justice and Justices of the Supreme Court for their help not only in preparing this bill but n 1986, 12). Unlike the 1922 Act, only token opposition in Congress occurred this time through. This opposition largely was led by Thomas Walsh a Democrat on the House Judiciary Committee who argued that giving the Supreme Court almost unlimited disc Court could now summarily dismiss their claims. Yet even this opposition was quelled when Walsh realized that overwhelming support in Congress existed for the Act (Estre icher and Sexton 1986, 12 13). The culmination of these efforts yielded the Judges Bill of 1925, which granted greater discretion over the appellate docket to members of the Supreme Court, and 5 th Cong., 2 nd Sess., 62 Cong. Rec. 2737 (1922). For more general background regarding this attempt, and others affecting the appellate jurisdiction of the Supreme Court, see Rehnquist (1986).
38 which established the widespread use of certiorari to create discretionary docket. Following the passage of the legislation, Taft felt compelled to explain precisely how Congress modified the appellate jurisdiction of the Court. Taft (1925, 4) specified that the Act required prior cases from certain American protectorates, such as Puerto Rico and Hawaii, that used to be required to receive immediate review in the Supreme Court, now was subject to an initial review by a lower court. These disputes then would have to seek further relief through the cert iorari process. Taft also noted additional instances where certiorari could be granted at the discretion of the Supreme Court, including cases involving federal questions in state courts, and cases from the Court of Claims and Court of Customs. The certifi cation process was also expanded, whereby judges from lower courts, including state courts, could certify questions pertaining to federal law to the Supreme Court. The immediate consequence of the passage of this bill was of course to lessen the burden on the Court, which was displayed in their immediate decline in caseload. This can particularly be seen in Table 2 1, which shows the amount of cases filed, and roughout the decade of the 1920 s. As one ca n see, on the eve of the Judges bill in 1924, there were 255 cases filed, with 230 cases being resolved by a signed opinion. However, toward the end of the decade in 1928, there were only 145 cases filed, with 129 signed opinions. Furthermore, the long te rm effects from this legislation suggests that it has achieved its primary goal, as the number of appeals for certiorari review have grown steadily each following decade, while the number of cases actually deemed worthy for review have remained relatively stable. As noted by Estreicher and Sexton (1986, 13),
39 the average number of cases filed each year by decade for review by the Court has increased from 737 in the 1920 s, 940 in the 1930 s, 1 223 in the 1940 s, 1 516 in the 1950 s, 2 639 in the 1960 s, 3 68 3 in the 1970 s. Obviously without the Judges Bill, or some variation of it, case selection and docket control on the Supreme Court would have been an administrative nightmare. Separation of Powers Following the Enactment of the 1925 Judiciary Act In addi tion to the primary purpose of lessening the burden on the Court, Taft noted another and perhaps greater conse quence from the passage of the A ct. According to Taft, the sound theory was that the Judiciary Act should allow litigants to have their rights pr otected through having their case heard in an initial forum, followed individual rights was not to resolve every dispute. As Taft (1925, 2) noted, The function of the Supreme Court is conceived to be, not the remedying of involves principles, the application of which are of wide public or governmental interest, and which should be authoritatively decla red by the final court. Thus, the passage of this act essentially transformed the Cour t as an institution, as it to provide remedies to every litigant, but rather to sit as a court of last resort and decide cases and controversies of real consequence. Based on th is transformation, the Act tion of the Cour t changed, so too did its effect on the established system of separated powers. This change regarding the function of the Court was a direct consequence of the types of cases that the Court began to hear once Congress gave the Court ultima te
40 control over its docket. Recall that the grant of limited discretion by Congress in 1891 resulted in the Court moving away from being viewed as a common law appellate court, to one that resolved issues pertaining to federal statutory construction. Whil e this shift was largely due to the changing economy, the newly granted ability to select cases enabled the Court to resolve more of these disputes. Similarly, and perhaps more importantly, the Judiciary Act of 1925 afforded the Court greater discre tion to hear new types of issues. Thus, the long term consequences of expanding the judicial power and giving the Court discretionary control over its docket marked a progressive shift on the types of cases that it chose to decide. In s lowly shifting its focus, t he Court became a more active policymaker that began to decide an increasing amount of cases that affected both the executive and legis lative branches. In addition, o ver the next several decades, the Court would utilize this new power to hear more cases an d decide them in a manner that was inconsistent with the preferences of the other branches, such as disputes involving civil rights and civil liberties. This may have been an unintended consequence of granting this discretionary power. When Congress chose to give discretion to the Court in 1891, and in 1925, the branches were aligned from an ideological perspective. 6 While the primary purpose of granting the discretion may have been for administrative reasons, it should be noted that there were no initial i deological concerns with how the Court would use the new 6 On March 2, 1891, when the Judiciary Act was signed, the executive, and both chambers of Congress were controlled by Republicans. Likewise, the Court consisted of seven justices who were appointed by a Republican President. While the co mposition of the House of Representatives did change in 1891 to a Democratic majority, the new members were not sworn in until March 4, shortly after the Judiciary Act was enacted. Likewise, in 1925, the President, House and Senate were all in Republican h ands. Similar to 1891, the Court was also comprised of seven justices that were appointed by a Republican executive.
41 power, since they were ideologically aligned. Thus, the short term consequences of granting new discretion appeared to only further the current Congressional agenda. A s decades passed, however, and the complexion of Congress and the Court changed, the Court began to utilize the new discretion to target particular policy ar eas that it deemed important. In highlighting these areas, and as indicated above, the Court often ruled on cases that were contro versial and often conflicted with the preferences of Congress Therefore, in granting more discretion to the Court, Congress permitted it to play a more prominent role in our government as it could focus on specific Constitutional issues which may have a ltered the structu re of our constitutional system by affecting the separation of powers. This is not to suggest however that Congress lacked oversight, or even the ability to take control over this n ewly conferred power. Obviously as Congress has the abil ity to confer appellate jurisdiction, it has the ability to take it away. It also has other potential means of control, including additional sanctions and rewards that it can offer the judicial branch. This le ads to a few interesting and substantive questi ons that will be addressed throughout this dissertation, and were noted in Chapter 1 The primary question is of course: How has the relationship between Congress and the judiciary changed since the conferral of the discretionary docket? Falling un der this question, are several additional issues that will be examined, including: 1. How has Congre Supreme Court discretionary power? 2. To what extent has Congress attempted to control t he federal judiciary through sanctions and rewards since the conferral of the discretionary docket? 3. Does Congress act in a uniform manner in curbing or rewarding the judiciary, or do differences in the chambers of Congress result in different treatme nt towards the judicial branch?
42 4. How has ideology between the branches and partisanship betwee n the political parties affect Congressional oversight? To address these questions, a suitable framework is required that will adequately explain the complex re lationship between these institutions. In this dissertation, I will be utilizing a simple but powerful and effective theoretical framework that is commonly employed to examine various relationships in the fields of economics and political science the pri ncipal agent model. The Principal Agent Model Background: Agency Theory The roots of the principal agent model can be traced back to the legal concept of agency, which is defined by Dictionary (2004) as [a] fiduciary relationship created by e xpress or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions. In the legal context, this concept has largely applied to determine whether certain indi viduals truly had the authority to bind their purported principal to a contract. This relationship is based on the fundamental concept that both actors agree to form this relationship where the agent acts under the control and on behalf of the principal. As outlined by Miller (2005), t his basic definition and concept of agency was soon adopted by the field of economics. The first attempts at employing agency in this field was seen during the 1960 s and 1970 s, in which several scholars were attempting to a pply this theory to explain risk sharing between individuals or groups (Wilson 1968; Arrow 1971). One particularly influential work was provided by Spence and Zeckhauser (1971), who used this approach to explain insurance premiums. While not formally utili zing the principal agent model, this work was important for using the same logic in
43 explaining that through providing incentives in the form of insurance rates, an insurance company can reduce their risk, and also potentially alter the behavior of individu als. During the late 1970 s, economists began developing and utilizing formal models involving the underlying theory of agency. These models utilized much of the same terminology as the legal definition of agency, and also had the same goal of determining the extent to which the principal can control the agent. However, the major difference is that the economic models more closely examine the relationship between these legal actors in attempting to explain why the agent performed or failed to perform as in itially intended. 7 General Concepts of the Principal Agent Model The principal agent model comprises of several critical assumptions regarding the relationship between individuals or groups. Similar to agency theory, the basis of the entire model hinges a round an agreement or contract entered into between two parties (Eisenhardt 1989). Unlike some contracts however where two parties are equal, one party in this relationship is supposed to be subservient to another. In other words, this contract creates a h ierarchical structure, in which one party, the principal, delegates some authority to the agent in order to complete the task. This delegation is primarily given due to the fact that the agent typically has more specialized knowledge, and is able to achiev e the goal or desired output of the principal more efficiently. Some common examples of this hierarchical relationship includ e lawyer client, doctor patient, contractor subcontrac tor, and employer employee (Moe 1984). In each of these 7 For a general review regarding agency theory, and the utilization of it in the field of economics and organization, see Eisemhardt (1989 ). Also, see Miller (2005, 204 206), who although provides a useful review of principal agent theory pertaining to political science, and more particularly works involving congressional oversight of the bureaucracy, also cites the formation of the principa l agent model, which he attributes much to the field of economics.
44 examples, one party c ontracts with the other, but is still considered superior in the relationship, as they ultimately pay for the other to complete certain services. In spite of this hierarchical structure, the model assumes that each party to the contract is a self intereste d actor who is attempting to achieve a particular goal or goal. The agent on the other hand, desires to achieve this goal, but may have other priorities that it deems contractor subcontractor relationship, the contractor has the overall goal of making sure that each item that is complete is done so according to certain specifications. In order to complete thi s task, the general contractor may hire a subcontractor that specializes in a certain area such as roofing to complete part of the project. While the subcontractor will complete the task, it will have its best interest in mind in doing so. Therefore, the s ubcontractor may order subpar materials that are similar to the specifications, but can be supplied cheaper in order to cut its costs, and hence make a larger profit from the contract that it entered into with the contractor. This process whereby the agent (subcontractor) decides to engage in conduct that in some sense runs counter to the shirking shirks is due to the problem of conflicting goals between the parties in the init ial contract. In order to prevent shirking the principal can monitor the activity of the agent to ensure that it is completing the task as originally specified. Using the contractor subcontractor example above, the contractor may hire an additional party or subcontractor to review the materials that the roofing subcontractor is using for the
45 project. The newly hired party may also directly monitor the entire task of the subcontractor to ensure compliance. However, the problem with creating such a monitorin g system is that it is typically more costly to implement. Therefore, the principal may be unable to effectively control the entire scope of the project as originally specified. If on the other hand, the principal does learn of the agent shirking then it can sanction the agent to ensure that it completes the task as originally agreed to. The agent may therefore comply for fear of being sanctioned in spite of there not being an adequate monitoring system established. Continuing the contractor subcontractor hypothetical, the contractor may ultimately discover that the work was not completed either in a timely manner, or not up to required specifications, and hence may withhold payment until the project is completed appropriately. I t is thus critical that the principal create an incentive structure that adequately motivates the agent to complete the task. To summarize this relationship, Moe (1984, 756) notes that [t]he agent has his own interests at heart, and is induced to pursue the nly to the extent that the incentive structure imposed in their contract renders such behavior advantageous. The essence of the Therefore, in all principal agent models, it is importan t that when creating a contract, the principal maintains control in the hierarchal relationship through providing either adequate incentives to ensure compliance, or has various sanctions at its disposal that adequately threatens the agent, who ultimately performs the duty as specified to avoid being harmed.
46 Applications of the Principal Agent Model in Political Science Borrowing from the field of economics, political scientists soon utilized variations of the principal agent model to explain a variety of political issues. These issues have ranged from the relationship between executive and the electorate (Downs and Rocke, 1994), to discussing the extent to which lower courts comply with the demands of the United States Supreme Court (Songer, Segal and Cam eron, 1994). However, perhaps most closely associated with the topic of this dissertation, the model has been applied to explain several different separation of powers relationships. The most cited separation of powers analysis utilizing this approach, a re those that attempt to explain the relationship between Congress and executive agencies, whereby Congress acts as the principal, and attempts to control agencies through a variety of mechanisms. As noted by Miller (2005), who provides an overall review a nd have progressed over time. Initially the literature focused on congressional control through offering incentives, and argued that bureaucratic agencies performed their duty due to the rewards and sanctions that are created in an incentive system by congressional committees (Weingast and Moran 1983). This argument essentially proposes that Congress does not monitor executive agencies, but rather observes the comple ted behavior to determine whether the output is as contracted for. One scholar, [t]he mechanisms evolved by Congress over the past one hundred years comprise an ingenious system for control of agencies that involves little direct congressional monitoring of decisions but which nonetheless results in policies desired by Congress.
47 In further explaining why Congress may not have to actu ally monitor the agencies, McCubbins and Schwartz (1984) suggest that constituents effectively monitor when the agencies are n ot operating as intended. A gencies there fore end up complying without direct monitoring. The literature later progressed to examining the possibility that Congress may actually be able to control agencies without incentives. These subsequent views argue that Congress may control agencies throug h creating and implementing policies and ce the agencies to comply with c ongressional goals (McCubbins, Noll, and Weingast 1987). For example, Congress may create a higher burden of proof or procedural rules that req uire members from the agency to interpret a rule a certain way that would favor congressional intent. Thus, an incentive structure may not be required in the context of Congressional relations with executive agencies. In a similar separation of powers con text, and most relevant to this dissertation, the principal agent model has been applied to explain statutory interpretation by the Court, and why the interpretation may differ from the preferences of Congress. As seen in one work by Schwartz, Spiller and Urbiztondo (1994), this model is utilized to explain why Congress may legislate vaguely at times and also why the Supreme Court may use legislative intent to make its decisions. As the authors explain, although writing specific legislation is costly, it p r ovides a direct signal to the C ourt that its cost of reversi ng a statutory decision by the C ourt is low, or Congress has strong preferences regarding the legislation. Unfortunately, due to the high transaction costs involved in drafting specific
48 legislatio n, it is often left vague with the Court left to rule accordingly. The crucial aspect of this process is signaling, which should provide the Court with knowledge regarding the desires of Congress. However, due to uncertainty and the inability to have compl ete information, the Court may consult with committee reports and other items of legislative intent to determine Congressional preferences when the statutes are vague, as they can be obtained at relatively low cost. A final and critical concept presented in this work is that regardless of whether the statute is specific or not does not guarantee judicial compliance. Rather, according to Schwartz et al judicial compliance is often the result of a perceived threat of a congressional response to an improper interpretation of a particular statute. Thus, the Court and Congress are engaged in a strategic relationship in which the Court attempts to determine the true preferences of Congress. Applying the Model: Congress and the Courts in the Wake of a Discretio nary Docket The literature above provides groundwork for the underlying theory that the principal agent model may be applied to the relationship between Congress and the judiciary. In fact, a variation of this model has dominated much of judicial politics for the pas t few decades. For instance which attempts to explain judicial decision making as the product of numerous internal and external constraints. In defining this model, Epstein and Knight (1998 10 11) state that, the strategic account of judicial decision making comprises three main
49 In the context of se paration of powers, this model is important, as it suggests that individual Supreme Court justices have policy goals that they would like to implement, but may be constrained by other political institutions, including Congress, from doing so. Realizing tha t a decision involving statutory interpretation may be overridden by Congress, or that Congress may respond through other available sanctions, the Court may satisfice by handing down a policy that will be amenable to Congress, but that locates the outcome in a manner that is also proximate to its policy preference. This strategic framework is important, as it implies that the Court recognizes that there are potential sanctions, and may adjust its ruling accordingly. In regards to this dissertation, the pri ncipal agent model similarly is appropriate since c ongressional behavior is being examined and a rich legacy of such anal ysis already exists (Weingast and Moran 1983; Weingast 1984; McCubbins and Schwartz 1984 ). Unlike the focus in strategic accounts, in w hich individual justices or the Court is examined to determine whether they alter their preferred position, this dissertation seeks to explain how and why Congress may attempt to monitor, constrain a nd ultimately sanction or reward the judiciary Furthermo re, in seeking to explain this behavior, this dissertation makes the explicit assumption that there is in fact a hierarchical structure between Congress and th e judicial branch, as Congress can control the appellate jurisdiction of the Court, and can impos e various sanctions and rewards on the lower courts as well While this may have been implicit in the strategic model, the judiciary is explicitly assumed to be subservient to Congress, and hence is viewed as the agents in this relationship.
50 Initial Contr act With regard to the specific account of this relationship, recall that the Judiciary Act of 1925 is the critical point where the analysis begins since the Act essentially marks the beginning of a contractual agreement between Congress and the Court. In this agreement, Congress delegated new authority to the Supreme Court by granting it the ability and discretion to choose particular cases, thus freeing it from an administrative backlog that inhibited it from optimally performing its primary function of m aintaining the body of federal legal precedent. In doing so, Congress altered the appellate jurisdiction of the Court. Congress therefore, acting a s the principal, gave control to the Court over its docket, with the hopes of easing admi nistrative concerns wh ile also permitting the Court to choose the most important cases worthy of judicial review. In permitting this new discretion, Congress effectively entered into a bargain with the Court, with the expectation that the Court would use this new power to de cide these important cases consistent with their preferences. Conflicting Goals and Shirking In addition to the role of contractual formation, conflicting goals is inherent in any principal agent relationship. True to this concept, the relatio nship betwee n Congress and the Court display tension caused by differen t underlying motivations and goals of divided between short term and long term. In the short term, Congressmen ha ve the primary goal of being reelected (Mayhew 1974). Central to this idea, are the concepts of various issues to maintain or garner public support, and take credit for b ringing back resources to their particular district. These concepts are critically important, as they
51 suggest that members of Congress may introduce or pass legislation just to garner support, and ignore th e potential ramifications of a particular bill. Th e other long term goal that members of Congress share is the formation of public policy (Fenno 1973). While some members care about passing legislation that benefits society, this long term goal is also intertwined with or predicated upon the short term go al of re election, as many pursue policy goals that are consistent with their constituents. Thus, both short and long term c ongressional motivations are tied to reelection. On the other hand, justices have unique motivations and goals with respect to elect ed branch actors. Similar to congressmen, it has been repeatedl y assumed that individual justices also have policy motivations (Segal and Spaeth 2002; Epstein and Knight 1998). While it is debated i n the literature whether justices vote their sincere polic y preferences or modify them to comport with other institutions, 8 it is generally accepted that they do have policy goals that they try to implement. Unlike con gressmen however, justices do not have to seek reelection. Therefore, d u e to life tenure, justic es are free to rule according to their policy preferences that may conflict with those of Some may note that the goal conflict be tween Congress and the Court are therefore a product o f the initial institutional design as envisioned by the founding fathers. Having a judiciary not beholden to the public through reelection certainly enables the courts to reach outcomes that may be unpopular. Whi le this is true, and the 8 model of judicial politics. More specifically, those that adhere to the attitu dinal model, which was developed by Segal and Spaeth (2002), suggest that members of the Court only consider their own ideological preferences when rendering a decision, and believe that external considerations, such as the preferences of Congress, are irr elevant in judicial decision making. This contrasts with the approach of the strategic model, which was previously presented, and generally asserts that justices do have policy preferences, but modify them in order to comport with other institutional prefe rences.
52 result of the initi al design of separat ion of powers, the Judiciary Act of 1925 clearly magnified the implications of goal conflict between the branches. For at one time the Court might intermittently step into issue areas and engender conflict by defining singular policy ou tcomes that would contradict Congressional preferences. Now, however, the Court could systematically enter into an issue area and hear a string of such disputes within a hotbed issue area. In general, t he granting of additional discretion to the Court enab led it to hear more Constitutional case s, which in turn permitted the C our t to more successfully establish broad policy positions. This newly empowered Co urt gave rise to the possibility of an active judicial policy maker that would effectively shirk the b argain that underscored the 1925 Act. Shirking efforts by the Court can manifest themselves in several ways. Perhaps the most obvious way, is through rendering decisions that conflict with the preferences of Congress. Once again when both efforts were com pleted in 1891 and 1925 to afford the Court greater discretion, all branches were ideologically aligned, and hence there However, the possibility was always present that the Court could shirk as both Congress and the Court may have different policy goals at a future time. Related to actually addressing the merits, and shirking through deciding cases, the Court can also shirk by manipulating the agenda. F ollowing 1925, th e Court has ultimate control over its docket, allowing it to enter into particular policy areas that were ripe for conflict with Congress. 9 9 Due to the potential threat of Congressional sanctions as described in the next subsection, scholars have also noted that the Court can use the discretionary docket to avoid conflict with Congress. For example, Harvey and Freidman (2009) note th conflict with Congressional preferences regarding constitutional issues, and hence there may be selection
53 Monitoring, Sanctioning and Incentivizing the Courts In order to determine whether or n ot the Court is complying wi th C ongressional preferences, Congress must establish some sort of system to monitor it This system has to fully infor m Congress whether the Court is adequately fulfilling the terms of the contract by using the discretionary docket in a manner consistent with their preferences. T he primary method of monitoring the judicial branch occurs through the committee structure, and more particularly, the judiciary committee. In this committee, members of Congress examine judicial decisions, which provide a clear i ndication as to judicial preferences. In addition, the committee can monitor the Court through analyzing t he types of cases that it is deciding. Through carefully analyzing the types of cases that the Court is placing on its docket, the committee can glean from the Court whether they are more willing to rule according to their preferenc es or not. Following the monitoring process, Congress has a variety of ways that it can respond to the Court, which include both negative sanctions and positive rewards that it can implement in an attempt to influence the future decision making process of the Court. First, with regard to sanctions, if the decision of the Court is simply based on interpreting a statute, then the easiest way to indicate its displeasure with the Court is for Congress to pass legislation overturning that particular interpretation. However, as Schwartz et al (1994) indicated, it is relatively costly to overturn a particular decision based on statutory interpretation, which is why some statutes are either writt en specifically to prevent the C ourt from striking the statute down, or extra guidance is bias in attempting to measure the effects of Congressional constraint on judicial decisions For present purposes, it should suffice to note that the Court has the ability to manipulate the agenda to either shirk and hence highlight the conflicting goals between these institutions, or to avoid conflict by selecting cases that were less likely to elicit a Congressional response.
54 rendered by Congress in the form of legislative history to help guide the C ourt toward a congressionally favored interpretation. On the other hand, if t he Court reaches its decision by utilizing judicial review and declares the legislation to be unconstitutional, then Congress is left with very little redress. While Congress can introduce legislation that would attempt to amend the Constitution and overri to be viewed as a hollow threat, since the likelihood of actual passage is minimal. 10 Congress may invoke however, other strategies for what it perceives to be shirking of judicial duties. F or example, Congress can introduce legislation that attempts to strip the jurisdiction of the Court or even the entire lower federal judiciary from hearing similar disputes, or may propose measures that directly harm the Court as an institution. For such l egislation to be deemed a credible threat, the Court would have to consider it capable of being passed. While the mere introduction of such legislation does not meet these requirements, bills that are reported out of a committee and recommended to a partic ular chamber do. Legislation satisfying this threshold indicates that Congress deems the issue of such importance that it would spend the time and resources to threaten the Court with such sanctions. 11 The Court would theref ore be 10 In spite of being viewed as a hollow threat, this would not preclude the introduction of such legislation in its entirety. After all, many members of congress introduce such legislation to appeal to constituents and ga rner popularity in their districts (Clark 2011). Thus, in spite of the extreme unlikelihood of success of such a proposal, due to reelection concerns, attempts to overturn constitutional judicial decisions by the Supreme Court are still observed. 11 Chapte r 3 will provide more analysis regarding the usage of committee reports as a viable alternative to examining the mere introduction of legislation as a legitimate threat to the Court. This alternative approach is discussed later as it contrasts with pri or approaches that examine the separation of powers with various models. However, for current purposes, it should suffice to note that committee reports are viable threats of sanctions and can also be applied in the principal agent model.
55 more likely to alter cours e and make efforts to adhere to Congressional preferences following these legitimate threats. In contrast, Congress can also attempt to influence future judicial decision making by attempting to provide positive incen t ives For example, during those period s when Congress and the Court are ideologically congruent on constitutional issues, Congress may afford greater discretion to the Court to choose which cases it hears. Likewise, Congress can alter the appellate jurisdiction of the entire federal judiciary that not only affords discretion to the justices, but also eases the administrative burden on all aspects of the judiciary. One example is that Congress can create lower courts that specialize in deciding disputes of a particular nature, such as bankruptcy or customs cases. In addition, and as is most often the case, Congress can pass legislation that bestows more resources, creating lower fe deral district courts or expanding the bench by adding more federal judgeships. Finally, Congress can also provide mo netary incentives, such as salary increases for federal judges and their staff. All of these incentives are important as they may help motivate the judiciary to consider and frequently abide by congressional preferences. While this section provides a gene ral account of how Congress may monitor, sanction and incentivize the Court, it is important to note that this process, and in fact the entire relationship between these institutions involve the relationship between the entire legislative and judicial bran ches. In other words, whereas Congress is primarily monitoring, sanctioning and incentivizing the Supreme Court, the sanctions and incentives often target the lower federal courts as well. Thus, while the starting point of this dissertation begins followin g the Judiciary Act of 1925, in which the bargain was
56 entered into between Congress and the Court, the subsequent efforts by Congress to assert its control over the Court involves the entire federal judiciary 12 An Overview of the Principal Agent Model as A pplied to Congress and the Court s Although the principal agent model has been described in the abstract, some historical context of this relationship can further help elucidate the intera ction between these branches with in the modern era. While later chapt ers will thoroughly ex amine this relationship, a focused account of congressional sanc tions and incentives will promote a more concrete conceptualization of the relationship. The key to this historical analysis focuses once more on examining the attempts on how Con gress has tried to control the courts over time. Recall that court curbing legislation represents the potential sanctions that Congress can use, while court rewarding legislation offers incentives. One would expect that in general, opposite tren ds would be observed over time, as Congress would not attempt to control the judiciary through sanctions and incentives contemporaneo usly. As displayed in Figures 2 1 and 2 2, this is precisely the case, as generally there is an increasing trend with court curbing legislation being reported out of a committee, while less court rewarding has resulted during the same period. While these opposing trends are intuitive, it should be noted that Congress appears to attempt to control the judiciary through sanctio ning it, rather than rewarding it over time. However, as will be discussed in later chapters, this does not mean that 12 As reviewed in C hapter 1, the Supreme Court is clearly the primary representative of the judicial branch. As such, many sanctions and rewards not only target the Court, but are also in response to specific actions/decisions by the Court. Therefore, many variables that a re tested in this dissertation directly involve Supreme Court behavior, such as the utilization of judicial review. However, since the sanctions and rewards imposed by Congress also target the entire federal judiciary, such as precluding judicial review of all federal courts, or in creating additional lower federal courts, this dissertation involves the overall relationship between the legislative and judicial branches.
57 Congress does not utilize incentives over time, or that various political phenomena that affects court curbing does not have an impact on court rewarding legislation. Rather, these trends suggest ision to sanction the judiciary Additional noteworthy items can be gleaned fro m these figur es as well. W hen one examines Figure 2 1 with regard to court curbing attempts over time, there appears to be distinct periods when Congress is more prone to engage in this activity. One should expect that there would not be many court curbing attempts in 1925, as the branches were aligned from an ideological perspective, and hence the Court was already ruling consistent with congressional preferences. However, this soo n changed during the early 1930 s, as President Roosevelt and Congress attem pted to implement the New Deal, but was stifled several times by a much more conservative Court. curbing the C ourt finally became a potential reality at actually passing, forci ng the Court to change its decision making. This is particularly seen in 1937, as Justice Roberts switched his conservative economic rulings, and joined the more liberal justices on the Court to uphold many New Deal programs. This appe ars to be a direct re sponse to c ongressional threats, as following that year, attempts to curb the court declined for nearly a decade. Two observations from Figure 2 1 are equally noteworthy. First both 1989 and 1995 stand out as years where Congress engaged in many more cou rt curbing attempts than average. However, during these two years it appear s that Congress engaged in
58 were largely a response to a recent Supreme Court decision. Mor e particularly, in 1989 in Texas v. Johnson (1989), the Court overturned a Texas statute that prohibited burning the United States flag on First Amendment grounds. Over one third of court curbing attempts that year were aimed specifically at overturning th at decision. Furthermore, all court curbing efforts that year attained some bipartisan support. In 1995, Congress reported the most amount of court curbing legislation attempts out of committee during the entire period under review. Unlike 1989, however, most of these attempts were not aimed at overturning a particular decision, but rather appear to be based on the changing complexion of membership within Congress. 1994 marked both the House and the Senate. This new group of conservative members were particularly hostile to the Court, as fifteen out of sixteen court curbing measures that we re reported out of committee were introduced by a Republican. These measures not only targ eted specific involving various topics. Thus, these more recent court curbing efforts appear to be more broadly ideological and not a response to a particular case. T his is so mewhat ironic since 1995 marks the occurrence of conservatives attacking a similarly conservative Supreme Court a nd a lower bench filled with Reagan and H.W. Bush appointees. In the context of the principal agent model, one can note that these seemingly disparate findings are in fact consistent. In 1989, the Court clearly was ruling outside of congressional preferences, and hence Congress responded by attempting to sanction it through introducing legislation threatening to reverse the decision. However, i n 1995,
59 the c ongressional attempts at sanctions were more of an i ndication to the Court that Congress viewed the rulings as not being conservative enough. Despite having a conservative C ourt, many conservative congressmen felt compelled to still introduce threatening legislation to display its displeasure against the current path of decisions that the Court was ruling in general or to target the lower court interpretations that were subsequently adopted This implies that Congress may in fact continue to t rack the agenda of the Court, and how it rules in particular areas. With regard to court rewarding legislation, Figure 2 2 once again displays the overall trend. At first blush, it initially appeared as if Congress would utilize incentives in a manner cons istent with rewarding the Court for ruling according to its preferences. This can particularly be seen in 1925, when all of the branches were ideologically aligned, and which also represents the high point of court rewarding legislation being reported out of a committee. However, the subsequent general decline in this type of legislation indicates either that Congress may no lon ger attempt to control the judiciary via incentives, or that less control was attempted over time through this method, since the br anches were not ideologically aligned. In addition, it is possible that this type of legislation is not as ideologically motivated as court cu rbing legislation, and is primarily used to ease the administrative burden on the judiciary. In fact, most of the se types of bills that are reported out of committee is typically administrative in nature, and involve adding additional judgeships, courts, or staff, and therefore lack an ideological component. Regardless of the precise reason, it should simply be highl ighted that the general trend is opposite to court
60 curbing, which suggests that there may be opposing factors that determine whether Congress attempts to either curb or reward the Court. Additional Considerations in Applying the Model Upon observing the historical variance in sanctioning and rewarding a ctivity, we can find systematic patterns that generally are consistent with a principal agent relationship. Nonetheless, considering this relationship as only involving two institutions may miss subtle diff erences in how and why each chamber of Congress approaches its relationship with the judicial branch. Theref ore this dissertation will apply the principal agent model from a bicameral perspective. Using this approach, each chamber will individually be vie wed as the principal in the relationship with the judiciary. In addition, the relationship between these institutions does not occur in a vacuum. While several variables will be examined that will help explain the relationship between each chamber and the judiciary, additional context regarding the political environment that these relationships occur in should also be reviewed. Thus, as this study takes place over an extended time frame in which political parties change, a brief account of realignment and party structure will be necessary It is anticipated that partisan changes in both th e parties and the electorate have repercussions on the relationship s between these institutions. Bicameral Differences While consensus was rare during the founding of the United States, several noteworthy concepts generated such appeal. As previously noted, separation of powers was one of these concepts. Bicameralism was another (Binder 2003, 15). While most studies examining separation of powers focus on inter branch beha vior between the Supreme Court and Congress as an institution, there is a dearth of studies that account
61 for the possibility that the chambers may react differently to judicial decisions. 13 Yet, the differences between the chambers should not be disregarded as they may hold potential explanations for inter branch behavior. After all, even the founding fathers recognized the importance of creating two independent chambers. For example, citing Federalist 51, Sundquist (1992, 26) noted that creating two chambe rs would : e two houses should be rendered of action, as little connected with each other as the nature of their common functions and In addition to protecting the people and the institutional authority of other branches, and also preventing the potential collusion of Congress as a whole, Sundquist prov ides another explanation which is perhaps the best, with regard to the reasons why the founding fathers separated the chambers. In detailing an exchange between George Washington and Thomas Jefferson, Sundquist (1992, 27) notes that : When Jefferson asked over the breakfast table why a s econd legislative This exchange shows t hat the Senate was initially seen as being needed to moderate the views and legislation of the more reactionary House It should be noted that the founders likely not only intended for legislation to be moderated, but even viewed the Senate as an institut ion of moderation. For example, in 13 factors correlate with the occurrence and success of court curbing bills. Nagel found that while the House introduces more of this type of legislation, the Senate is more successful in actually passing it. In addition, Chutkow (2008) recently attempted to account for potential chamber differences by measuring the ideological distance between the Court and each chamber separately in her models. The approaches adopted by both are important as they recognize the possibility that there may be differences in ho w each chamber approaches the relationship with the Supreme Court.
62 drafting the Constitution, the founders created a special relationship between the Senate and the judiciary by giving it the power to Advise and Consent to federal judicial nominees by the President. This constitutional p ower was likely reserved to the more moderate chamber, whose longer terms ensured that it would not be caught up in the common politics of a particular era. As federal judges are afforded life tenure, the founders likely intended that the more moderate and deliberative chamber should have the authority to help select memb ers of the judicial branch. This suggests that from the founding and the initial constitutional design, there was a special relationship between the Senate and the judiciary that binds thes e chambers closer to gether than the corresponding dyad with the House of Representatives. Based on this special relationship, the chambers may react and treat the judiciary differently, which may be viewed in how each chamber may attempt to control it. Wh ereas the House will likely be more reactionary and prone to attempt to control the judiciary to garner public support due to the shorter election cycles, the Senate will likely take a more cautious approach, and examine the future ramifications on the sys tem of separation of powers before acting. Thus, whereas the House will likely attempt t o exploit or use unpopular judicial decisions as a way to generate support for future elections, the Senate will likely safeguard Congress as an institution, and respon d to institutionally hostile efforts by the Court. While these expectations will be explored in later chapters, it should be noted that the underlying basis for why each chamber may approach its relationship differently with the judiciary likely stems fro m the initial constitutional design.
63 Party Structure An additional consideration when applying the principal agent model between Congress and the judiciary involves changes in the party structure. As this study examines the relationship between these inst itutions from 1925 2008, it is likely that different patterns may be present during particular time frames, as the parties and the turn may ultimately impact the relation shi p between Congress and the judicial branch In order to observe the possible effects that party structure may have on the relatio nship between the branches it is important to first describe realignment theory. The primary scholar that is associated wi th this theory is V.O. Key, Jr., who initially which the extent of electoral involvement is relatively quite high, and in which the decisive results of the voting reveal a sharp alteration of the pre existing cleavage within 4). The important characteristic of the altering electorate is that a sharp and durable shift persists for several decades following the election (Key 1955, 11). Key soon expa nded on this definition by suggesting that the actual realignment process may occur over a longer period of time. This modified definition, labeled common characteristic, d emographic or otherwise, moves over a long period of time realignment differ, these definitions are consistent in that critical elections often occur following a gradual s ecular realignment.
64 embraced this theory (Burnham 1967; Sundquist 1983) and have even added to it. For instance, Burnham (1967) has suggested that realignment is cyclical, and oc curs approximately once every thirty years. This periodicity argument is bolstered by several elections in which most agree realignment occurred, which include 1860, 1896, and 1932. However, perhaps most important to this dissertation is recent scholarshi p suggesting that realignme nt occurred throughout the 1960 s 1980 s, and culminated with the 1994 Republican Revolution. Part of this argument is presented by Aldrich (1995, 1999) and Aldrich and Neimi (1990, 1996), who assert that the 1960 s represents a critical era, and was followed by a period of s table alignment during the 1970 s and 1980 s. This period of stable alignment arguably concluded with the elections of 1992, 1994 and 1996, which led Aldrich (1999) to assert that these elections may have w itnessed the beginnings of a critical era. This assertion is supported by Abramowitz and Saunders (1998), who argue that the electorate shifted par tisan loyalties during the 1980 s. They attribute this partisan shift to the increased ideological polarizati on that occurred between the political parties during and following the Reagan administration. This period witnessed many from the South switching partisan allegiances, which was largely due to the issues addressed by Reagan, which divided the electorate a long ideological lines. T he realignment was the ultimate result of polarizing issues, which caused the electorate to shift into more ideologically cohesive political parties.
65 Similar to Abramowitz and Saunders (1998), Carmines and Stimson (1981) also atte mpt to explain partisan shifting, but instead of relying strictly on realignment theory, attribute it to a theory based on issue evolution. In their analysis, Carmines and Stimson examine racial issues, and more particularly desegregation, and find that pa rtisan change and the continuous replacement of the electorate resulted based on this divisive issue. In reaching this conclusion, Carmines and Stimson examined the elections of 1968, 1972 and 1976, which large ly supported their theory. Their findings sugg est that the issues appear to matter for purposes of ideological realignment. Overall, it is likely that realignment is largely driv en by the issues, which caused the increased polarization that has o ccurred during the past several decades. For the purpos es of this dissertation, this is critically important, as it will be argued that polarization and changing issues also affects the relationship between Congress and the judiciary While these arguments will be further d etail ed in the Chapter 3 it is important to note that they are related to the party structure. Thus, while the principal agent model seeks to explain the behavio r between Congress and the judicial branch over time, the changing party structure should also be considered in the analysi s, as several scholars have noted these changes over the same time frame that will be examined in this study. Concluding Comments Looking at the recent history of court curbing and rewarding activities, it is clear that the principal agent model provide s a useful means to conceptualize the ongoing relationship between Congress and the judiciary. In addition, approaching the relationship utilizing a bicameral analysis, with additional consideration taken into account for the changing party structure, appe ars to be justified. However, still left
66 unresolved are the precise motivations that describe why each chamber of Congress may att empt to curb or reward the judiciary during certain periods in the first place. While ideology and appealing to constituents a ppear to be motivating factors, there are several additional possibilities that should be accounted for, which may help to better explain the relationship between these institutions. These additional motivations behind Congressional decision making are cri tical, and an aspect currently left unexplored in most of the current separation of powers literature. Therefore, Chapter 3 will provide a brief overview of the current literature, and will argue for the inclusion of several additional variabl to engage in activity that controls the judicial branch This represents a departure from most current accounts that study the relationship between these institutions, as they focus primarily on judicial responses, and not on the underlying motivations of Congress. It is anticipated that through the lens of the principal agent model, and by examining Congressional motivations, a more complete picture can be described that more adequately depicts the relationship between Con gre ss and the judiciary over time.
67 Figure 2 1 Total c ourt c urbing l egislation r eported o ut of c ommittee, 1925 2010 Figure 2 2 Total c ourt r ewarding l egislation r eported o ut of c ommittee, 1925 2010
68 Table 2 1 Number of c ases f iled and s igned o pinion s on the United States Supreme Court, 1921 1929. [Table a nd data is adapted from Table 3 4 presented in Renstrom (2003, 100).] Year Total Cases Filed Total Signed Opinions 1921 209 173 1922 304 225 1923 247 212 1924 255 230 1925 250 209 1926 226 19 9 1927 206 173 1928 145 129
69 CHAPTER 3 SEPARATION OF POWERS LITERATURE, RESE A RCH DESIGN, AND FORMAL HYPOTHESES Introduction Chapter 2 provided a useful theoretical framework to conceptualize the ongoing sanct ion / reward relationship between the legislative branch and the judiciary. While most of the separation of powers literature involving Congress and the Court do not explicitly adopt the principal agent model framework, most utilize variations of it, as th ey typically model the judiciary as being subservient by determining the extent to how it modifies its behavior in response to Congressional threats (Segal 1997; Sala and Spriggs 2004; Clark 2009; Bailey and Maltzman 2011). These works thus attempt to disp lay the judicial response to congressional sanctions. This dissertation on the other hand, formally adopts the principal agent model, and examines separation of powers this dissertation examines Congressional responses to judicial decision making, and hence analyzes the unde rlying motivations regarding why and how Congress attempt s to monitor its relationship with the federal judiciary. In order to undertake this analy sis, it is important to first present the prior works that have attempted to display the interaction between these two branches from the Congressional perspective. This overview will first present several seminal works that utilized the frequency of congre ssional sanctions to identify periodic regimes, or historical eras, where tension between the branches was displayed. Next, more recent works that adopt quantitative modeling techniques to examine the inter branch ll be in troduced. These pioneering and contemporary works will then be reconciled by examining their relative strengths and
70 weaknesses, and an explanation of how this dissertation fits wit hin these works will be explicated Finally, a more thorough approac h aimed at properly capturing congressional moti vations in controlling the judiciary will be discussed. In this approach, a research design will be presented, and will be followed by formal hypotheses and a brief description of the data and methods that w ill be u sed to explain the inter branch relationship between these institutions. Congress Centered Studies Seminal Studies of Legislative Sanctions Most Congress centered studies involv ing separation of powers involve the Supreme Court and can trace thei r roots bac This study sought to explain why and how Congress attacked the Court during certain eras. In order to determine the underlying congressional motivations behind engaging in these institutionally hostile ac ts, Nagel forms several different hypotheses about the inter branch relationship First, the frequency of judicial review is examined, as it is hypothesized that instances of court curbing is a response to the judiciary striking down Congressional legislat ion, and hence may be the result of judicial provocation. Intuitively this makes sense from a separation of powers perspective, as Congress is likely to respond to an institutionally hostile threat from another branch. Next, Nagel examines the subject mat ter of the provoking cases that may have caused the court curb ing behavior. He suggests that Congress may respond to the Court hearing certain types of cas es. The basis of this premise is that Congress would be more willing to attack the Court as it delved into cases that conflicted with its prevailing balance of preferences. This may especially be the case during certain eras, such as the 193 0 s, as the Co urt was continuing to advance a dated economic agenda,
71 or during the 1950 s and 1960 s, with the Court stepping out in front of the elected branches by hearing claims involving civil rights and liberties. His third expectation delves into the internal context of the Supreme Court. More specifically, Nagel examines whether the degree of consensus on the Co urt matters and hypothesi zes that Congress may enjoy success in its court curbing efforts if the Court is divided in its opinions. After all, if the Court is divided, then it is arguably weaker as an institution, and hence may be more susceptible to an att ack from Congress. In response, the Court may alter its decisions to avoid being sanctioned during times where there is disagreement among the members of the Court. Parties in Congress are also a constituent part of examines whether certain parties are more prone to attack the Court. Additionally Nagel examines whether and to what extent partisan differences between Congress and the Court may play in the court curbing process. It is believed that a Congress that is of a different po litical party from the Court may be more prone to attack it. This may especially be observed during times when the Court is advancing a particular agenda or deciding cases in a manner consistent with the minority party. Thus, when the majority party in Con gress is ideologically divergent from the Court, more court cu rbing efforts should be observed. 1 In undertaking his analysis, Nagel used the Congressional Record and collected and examined bills which were designed to curb the power of the Supreme Court. In 1 Nagel also presents several additional hypotheses that are excluded in the analysis undertaken in this dissertation. For instance, Nagel suggests that periods of political crisis, publi c opinion and regionalism analysis as there are limits in the data. For example, public opinion data that has been used in the past in separation of power s studies only goes back to 1972, which would reduce the sample size of this study (See e.g. Clark 2009). In addition, the remaining variables would be dichotomous, which are arguably susceptible to subjectivity, and hence are excluded.
72 order to keep his data within manageable limits, he excluded resolutions and constitutional amendments from the analysis. This effort led to the collection of one hundred and sixty five court curbing bills in which Nagel subsequently divided into seven distinct high and low periods of court curbing activity by Congress. Following the introduction of these periods, Nagel also identified the relative success of the court curbing measures during these seven political eras where there was a higher incidence of this type of legislatio n. This is displayed on Table 3 1, which shows whether the bills made it out of the judiciary committee, and also whether the judiciary subsequently retreated from its path of judicial decision making as a response to the threats Based on the results reported on the table, one can see several eras when court curbing appeared to cause judicial retreat. These eras (1802 1804; 1823 1831; 1858 1869; 1935 1937; 1955 1959) are important, as they support the underlying premise that the Court may respond to institutional threats from Congress. In addition, by examining bills that were reported out of the judiciary committee, Nagel recognized the importance that it may play in the legislative process involving matters dealing with the Cou rt. Nagel ultimately finds support for many of his hypotheses. First, with regard to the introduction of court curbing legislation, he finds that judicial review does matter, with more instances being associated with Congressional court curbing. With regar d to subject matter, Nagel found that Congress was more prone to attack the Court as it decided more cases involving economic activity. Furthermore, as the C ourt g rew more divided, with unanimous opinions becoming rarer, incidences of Court curbing
73 increas ed. Finally, when the Court and Congress were divided from a political standpoint, more court curbing was introduced. Rosenberg (1992) extended the analysis, and examined these court curbing efforts to determine whether the Court has truly acted in a subservient manner over a more extensive period. courts are independent, and that they ignore the preferences of other institutions and politically accountable officials when they render their decision s. In order to test this hypothesis, Rosenberg identified several distinct eras when the Court was acting in an independent versus a subservient manner in regards to its relationship with Congress. In principal agent terms, Rosenberg was testin g whether t he Court was in fact a good agent during these eras, or whether it may actually have been shirking These eras are disp layed on Table 3 2, and substantiate patterns that most histo rical scholars would agree with For example, during the Warren Court, 1963 1965 represe nts a period when the Court was acting independent, and handing down rulings that clearly can be seen as conflict ing with the preferences of Congress. Contrast this period with 1935 1937 that Rosenberg identified as a subservient Court and tha t represents a period when the Court shifted its opinions to comport with Congressional preferences with regards to the New Deal programs. In explaining the reasons for differences in the relationship between these institutions, Rosenberg notes several fac tors, which are primarily based on the notion that independence is less likely to be observed when opponents of the
74 Court are elected into office. 2 His results ultimately suggest that the extent of subservience is in part a function of the complexion of Co ngress and the Presidency. Contemporary Works Examining Inter branch Interaction More recent studies have also shared some success in expounding on the inter branch interaction from the congressional perspective Specifically, Chutkow (2008) studies juri sdiction stripp ing legislation (which is a constituent part of court curbing legislation), and similar to Nagel and Rosenberg, sought to explain the causes of such legislation. In seeking to explain this conduct Chutkow proffered two primary hypotheses. T he first suggested that there would be more jurisdiction stripping l egislation as agency ideology drifts closer to Congress t han the Supreme Court. The rationale for this hypothesis was that as the Court and Congress become more distant, judicial review of ss becomes more aligned with an agency, it prefers agency rules and regulations over court rulings, and will act to strip the jurisdi ction of the C ourt more frequently. Her second hypothesis suggests that jurisdiction stripping attempts increase whe n the United States is the subject of civil case filings In other words, the motivation for advancing jurisdiction stripping legislation ma y in fact be related to budgetary concern s about the general costs of litigation, delay, etc. Thus, as more cases are 2 Specifically, Ros enberg (1992, 394 more prevalent are four conditions. When congressional and presidential campaigns have a Court component and result in defeat for opponents of the Court, when opponents are few in number and unable to coalesce with others, and when opposition to the Court is not intensely felt, judicial independence is most likely. On the other hand, judicial independence is least likely to occur when elections to Congress and the presid ency bring Court opponents to office, when opponents are many in
75 placed on the docket, j urisdiction stripping may take place in order to keep the docket of the federal courts more manageable. In order t o test these hypotheses, Chutkow examined the percentage of public laws in each congressional session from 1943 2004 that contained a jurisdiction stripping provision. In order to identify th e relevant legislation, she undertook a keyword search strategy in Lexis Nexis Congressional Universe. 3 The resulting data ultimately allowed Chutkow to conclude that jurisdiction stripping laws did not ap pear to be motivated by ideological relationships and policy battles. Instead the growth in jurisdiction strippin g provisions appeared to be a reflection of increasing case load s From c ongressional motivations behind these seemingly hostile legislative acts appear to be based on more benign administrative needs and not a product of ideolog ical policy battles between branches. Following Chutkow in terms of sequence and not substantive conclusions, Clark (2011) examines the timing of the introduction of court curbing bills. 4 The primary thesis of his study is that incide nts of court curbing represent evidence of public discontent with the Court. Given the widely used assumption that members of Congress are primarily motivated by reelection goals Clark sees their actions as closely connected with the wishes of their constituents. Advanc ing t his assumption, Clark speculates that when the Supreme Court loses support among the electorate for whatever reason, it 3 Chutkow (2008, 1056) notes that she used the following search terms to identify the relevant public law t 4 In his book, Clark (2011, 137 141) introduces several different models that test court curbing from a variety of perspecti ves. The model referred to in this dissertation strictly focuses on his model that uses perspective.
76 should be more likely for Congress to follow suit and introduce court curbing legislation. According to Clark, this end result may be du e to electoral impetus or may be interpreted as an effort to encourage the Court to alter its behavior and decide cases more consistently with electoral constituencies. primary hypothesis thus asserts that more court curbing bills will be seen in periods when there is public opposition to the court. The remaining hypotheses Tested explanations include measures of ideological distance between Congress and the Court, with the expectation that court curbing will be prevalent as the two institutions grow apart. Simply stated, Congress shoul d be more hostile to an ideologically divergent Court that rules in a contrary manner to its preferences. The influence of j udicial review is also incl uded in thi s particular analysis, which follows Nagel Finally, Clark hypothesizes that more court curbing behavior should be expected during highly active legislative periods. This premise suggests that court curbing ebbs and flows with the relative activeness of Congress the ability to actually enact some form of legislative sanction and as such tends to view these efforts as substantive attempts to check the Court and not credit claimi ng efforts of legislators wooing constituents. In order to test these hypotheses, Clark relies upon a similar data generating strategy as Chutkow, and employs a key word search to identify those court curbing bills introduced in Congress from 1877 2008. 5 Clark then invokes a variety of different 5 Clark (2011, 36) notes that he uses three differen t sources in identifying court curbing bills. First, he read the indices of the House and Senate Journals, and identified all bills from 1887 1937 that were Digest of Public General Bills
77 sources to test his hypotheses. 6 R esults generally sh ow that public support for the Court is a good predictor of court curbing activity, showing th at as public opposition to the C ourt increases, so too does court cur bing attempts. This supports his primary hypothesis, and highlights the electoral motivations of members of Congress. The results associated with ideo logical relationsh ips yield mixed support however tly signed, with only two out of eight models being significant. Clark is quick to note that these results are weak, and do not provide much confidence in support of the ideological hypothesis. Finally, there was no discernible evidence that court curbing was a response to judicial review or to legislative activism. Although robust empirical evidence is not found past the primary hypothesis, does represent the state of the art with respect to the literature. Currently it stands as the most comp rehensive and methodologically rigorous approach to studying inter branch behavior between Congress and the Court. Reconciling the se Works The se seminal and contemporary strai ns of literature obviously exhibit considerable variance in terms of research des igns and more importantly in terms of their end conclusions. The pair of seminal studies evinces considerable theoretical breadth in approach, in that they explored numerous aspects of the relationship and Resolutions, for those measures that were introduced from 1937 1989. Finally, he utilized the same search terms as employed from 1887 1 937 in THOMAS online for the bills introduced from 1989 2008. 6 ological distance, Clark uses the Judicial Common Space measure developed by Epstein, Martin, Segal and Westerland (2007), which identifies how far the Court is from the closer of either the House or the Senate. Data that is maintained each year by the Con gressional Research Services (CRS) is used for the judicial review variable, which identifies all federal and state laws that were struck down by the Supreme Court. Finally, Clark uses a count of all laws that were passed in a particular year to gauge how legislatively active a particular Congress is.
78 between Congress and the Cou rt Although they are theo retically robust, these works also lacked falsifiable tests and use frequencies to draw inferences about inter branch behavior. On the other hand, the contemporary pair exhibit falsifiable tests to expound upon inter branch actions, but engender scant sup port for the tested hypotheses For example, negative binomial regression is admirable and consistent with current standards of the discipline. In spite of this strength, these work s generate only limited findings with respect to the tested hypotheses and they arguably come up short relative to the theoretical foundations of the seminal studies. From this perspective, then, my dissertation seeks to address this gap that exists betwe en the seminal and contemporary studies of court curbing. I will show that the limited conclusions found in current studies are related to the definition of a valid dependent variable. When one looks at a measure of curbing activity that reflects a viable attempt on the part of Congress to sa nction not just the Court, but also the federal judiciary then results tend to improve. When one accounts for the unique motivations of the two chambers (e.g. credit claiming attempts versus longer institutional goals) it becomes apparent that a unicameral unit of analysis obscures the systemic origins of such activity in the House and the Senate. This dissertation will not only tap into the quantitative origins, but delve into the qualitative context surrounding the i nter branch relationship in the era of discretionary agenda powers. Finally, this analysis will also expand the focus to look at the potential use of positive rewards to see if the use of carrots too has systemic origins.
79 Given the different approaches u ndertaken by these works, one certainly should not be surprised by the existence of some conflict s with in the literat ure. Although of no surprise, it is important to have an understanding of what they are. Perhaps the best example is the divergent results regarding judicial review that exist between Nagel (1965) and Clark (2011). Whereas Nagel found that the exercise of judicial review was a strong predicate to court curbing behavior, Clark found no such effects. There was also conflict regarding ideologica l institutional distance. Nagel found support for the idea that ideological disparities between Congress and the Court matter and that divided party control of the two institutions (i.e. Congress versus the Court) led to cour t curbing. Chutkow (2008) found that ideology did not matter, and Clark (2011) on the other hand, showed mixed support for the hypothesis. It should also be noted that none of these works examine some crucial hypotheses frequently supported within the current literature on the legislat ive branch, including changes in party polarization, and the transformation In order to engage in a broader analysis, I will first present a research design and the several hypotheses that wil l be t ested. Chapters 4 and 5 w ill provide both a historical overview and falsifiable tests regarding the underlyi ng motivations for why the Senate and House may engage in court curbing and rewarding behavior. Sources of Court Curbing and Rewarding in the Era of the Modern Court While the above works offer a foundation from which to understand this topic, several issues involving the validity and reliability of the underlying research designs can be found that in the end may impede our ability to draw systematic inferences about these i nter branch relationships. T his research design offers revisions along these lines, and will attempt to redress these concerns with an alternative approach.
80 Appropriate Time Frame As one of the primary points of this dissertation seeks to determine how Co ngress and the judiciary have reacted following the Judiciary Act, the relevant starting point in the analysis begins with the passage of the A ct in 1925. This differs from prior works that examine the relationship between these two institu tions from longe r (Nagel 1965; Rosenberg 1992; Clark 2011) and shorter (Chutkow 2008 ) time frames. W hile the works that utilize a longer period cl early have more solid footing it may lack validity in that they fail to recognize the potential that the relationship between these institutions may have fundamentally changed following institutional changes in the power and practices of the Court Since the Court transfo rmed into a more active policy maker as argued in Chapter 2, examining the relationship between Congress and the Court before and after the Act would be like comparing two different Courts with Congress. Likewise the shorter approach may lack validity as it fails to capture the entire time frame following the Act. Therefore, this dissertation will examine the ti me frame from the passage of the Judiciary Act through 2008. Defining the Dependent Variables Court Curbing and Rewarding Behavior Another issue concerning validity involves defining an appropriate or legitimate form of court curbing/ rewarding behavior. It is critical that a robust, valid and reliable definition is adopted, since engaging in either a too narrow or broad approach may miss appropriate inter branch behavior. There are three primary approaches to how scholars have defined congressional beha vior that threatens the court. Perhaps the narrowest approach is adopted by Chutkow, who as previously indicated, strictly looked at jurisdiction stripping legislation, which she defined as including :
81 any statutory language stating that courts shall have no power of review, without predetermining why Congress chose to act and regardless of subject matter, or whether a statute is new or amended legislation (2008, 1053). While attempts at stripping the court s jurisdiction clearly are valid threats, and like ly to elicit a response by the Court, it can be argued that this approach is too narrow, as it omits additional avenues through which Congress may pose a threat to the Court, including overriding specific judicial decisions, altering the size of the Court, etc. than the one proffered by Chutkow (2008) as it involves limitations to judicial power rather than mere attempts at jurisdiction stripping. However, Clark further clarifies his definition by noting that : The typical court curbing bill is what might be ch aracterized as an institutional assault on the Court rather than a case specific effort to reve rse a Court decision. That is, court curbing bills are generally wholesale level responses to (potentially) a series of retail level problems (2009, 979). Theref ore, in spite of offering a broader and potentially more valid understanding excluding specific responses by Congress to judicial decisions. These efforts are precisely the type that one should expect to be considered in a separation of powers analysis, as the Court would likely view specific attempts by Congress at overturning judicial decisions as being hostile actions. Subsequent action by Congress would also indicate to the Court that it is displeased in how the Court is interpreting a particular policy area, such as civil rights and liberties. Therefore, while it is important to include legislation targeting the institutional power of the Court, it also is critical t o include case
82 specific congressional responses, as these would indicate to the Court Congressional preferences, and hence may display inter branch activity. The broadest definition of congressional behavior that may threaten the Court is provided by Rosen berg, who defines attacks on the Court as including : legislation introduced in the Congress having as its purpose or effect, either explicit or implicit, Court reversal of a decision or line of decisions, or Court abstention from future decisions of a give n kind, or alteration in the structure or functioning of the Court to produce a particular substantive outcome (1992, 377). This definition clearly offers the broadest possible account of sanctioning activity, as it not only includes attempts to strip the Court of jurisdiction, but institutional assaults as well. The definition includes specific congressional legislation in response to judicial his dissertation adopts a simila r definition as Rosen berg, and incorporates all forms of court curbing activity, including jurisdiction stripping, institutionally hostile legisla tive efforts targeting the courts and specific attempts by Congress to overturn decisions 7 While utilizing a similar definition as Rosenberg, it should be noted that the definition adopted in this dissertation is even broader than his approach. Recall that all 7 The following areas of court curbing activity was identified from 1925 2008 and include bills which: 1) preclude judicial review in general; 2) preclude judicial review by actions undertaken by administra tive officials; 3) specifically limit jurisdiction; 4) involve impeachment or removal of justices; 5) involve term limits or requires reconfirmation after certain times of service; 6) involve age limits, or required retirement; 7) involve the election of federal judges; 8) permit Congress to override court decisions; 9) require a certain majority of the Court for the decision to be binding; 10) submit Supreme Court decisions for decisions of the Supreme Court; 12) involve selecting members of the Supreme Court by majority vote of Chief justices of state supreme courts, or permitting state supreme court chiefs to submit a list of qualified candidates for service on the Supreme Cour t to the President to choose from; 13) prevent appointment on the Supreme Court if you are a member of a political party that is already the majority party on the Court; 14) preclude pay raises; 15) suspends salaries of federal judges upon conviction of cr imes; 16) prevents salary for federal judges if they do not resolve cases quickly enough; 17) provide official guidelines to federal judges when they should disqualify themselves in certain cases; 18) provide for a constitutional amendment to permit Congre ss to control federal judicial salaries; 19) prevent decisions by federal judges which would increase the tax rates of any individual; 20) adds justices on the Supreme Court; 21) abolishes judicial districts; and 22) overturn specific decisions rendered by the judiciary.
83 of these studies examine the inter branch relationship by strictly examining Congress and the Supreme Court. However, the approach undertaken in this dissertation involves the two branches, and hence involves the relationship between Congress and the entire federal judiciary. Therefore, legislative activity that targets the lower federal courts is also in cluded in the analysis. After all, while Congress may monitor the Supreme congressional legislation targeting the lower courts may miss important aspects of the inte r branch relationship between Congress and the courts, and are thus included in this dissertation. An equally broad and inclusive definition is also needed for court rewarding legislation. Unlike court curbing legislation, there are no prior examples in t he literature that defines this behavior. Therefore, this dissertation offers a similarly broad account of incentivize or reward the federal judiciary nition is broad, several examples are needed to adequately explain this concept. First, common incentives would include items such as increases in salary. However, most incentives involve relieving the judiciary of ce rtain administrative burdens, and inclu de items such as the addition of st aff, and new courts and judges in jurisdictions that help ease the administrative troubles in these areas. 8 8 While not as exhaustive as the list in the previous footnote regarding court curbing, areas of court rewarding legislation activity identified from 1925 2008 include bills which: 1) Increase salary; 2) Provide or increase retirement ben efits to federal judges; 3) Provide monetary compensation for miscellaneous expenses of federal judges; 4) Provides for studies that improve judicial efficiency or organizational structure; 5) Adds staff/clerks or additional materials; 6) Adds federal judg es, increases the amount of federal judicial circuits in certain states, and/or expands terms for federal judges to hear cases in a particular state; 7) Permit the Court to determine all instances of its own appellate jurisdiction.
84 Differences in Legislative Activity These prior works have also focused on different forms of legislative activ ity that may engender variance in the validity of existing dependent variables. On one side of the debate are those who argue that any bills introduced contain ing some sort of court curbing activity should be utilized. Under this approach, and as advocated by Rosenberg (1992) and Clark (2011), the frequency of bills introduced into Congress represent a valid measure of congressional preferences, as more court curbing legislation would be introduced during periods of greater hostility between the branches. However, some concern should exist for using the simple introduction s of such legislation, given that any member of Congress can actually introduce a bill and the potential for passage are miniscule The introduction of court curbing legislation may simply represent the preferences of one, or a few isolated members of Congress at a particular time that are proposing such legislation. Often these particular bills can be seen as efforts to pander to particular constituents or idiosyncratic observations of per sonal convictions and/or conflicts with the Cou rt. To the extent that the judicial branch would pick up this type of sanctioning activity taking place within Congress, it is likely to view a sizable number of these as being hollow threats, with no real pos sibility of passing. U tilizing the frequency of bills may therefore not capture sincere or substantive inter branch signaling that would be interpreted as a legitimate threat. One alternative to bill introduction is offered by Chutkow (2008), who utilizes the proportion of laws enacted that contain jurisdiction stripping provisions. This approach resolves the concern above regarding the utilization of the frequency of such legislation, since any law that is enacted obviously garnered the consensus of Congr ess and represents a successful attempt at sanctioning the judiciary Nonetheless, this form of
85 legislative activity may be too narrow as it focuses on the relatively rare occurrence of a successful sanctioning activity and one that does not account for co nflicts between the branches that are ameliorated before the majorities necessary to pass legislation arise. and even the lower federal courts may modify its activities in order to stave off a con frontation. Therefore, the judiciary may respond not just to laws, but to what it perceives as a legitimate threat that the passage of legislation is likely. Hence accounting for the enactment of laws may overlook the existence o f fundamentally important instances where a realistic chance of sanction affects the inter branch relationship between Congress and the Court. This suggests that while the mere introduction of legislation may not qualify as a legitimate threat (for reason s cited above), a middling approach that captures prob able sanctio ns should be considered indicators of inter branch signaling and conflict. In particular, bills that are referred to the judiciary committee that are subsequently reported out of committee r epresent such an approach, and have been used in the past to examine the relationship between Congress and the Court (Nagel 1965). These reported bills are important, as they have fulfilled the initial threshold of making it through a committee, and once i t satisfies this threshold, is recommended t o the entire Congress. The judiciary would likely view these as more legitimate threats since they have garnered enough support to reach the floor. The historical example of the New Deal period provides a useful account of this
86 introduced and reported several bills out of committee t hat targeted it for sanction. Since the Court responded by altering its judicial decision making, it likely viewed these bills as viable threats. These reported bills therefore represent perhaps the best approach that should display appropriate inter bra nch interaction and will therefore be used in this dissertation. 9 Finally, there is some disparity within the literature with regard to how past preferences. For examp le, there are four primary methods that Congress can utilize in order to pass legislation. The first of these are regular House (H.R.) and Senate (S.) bills, which are the normal procedure that legislation is passed in which both chambers agree to the meas ure, and is subsequently approved by the President. Another procedure involves House and Senate joint resolutions, which is mostly used to introduce constitutional amendments, and which also generally require approval by both chambers and presidential appr oval to become law. The third method that Congress can legislate under is through concurrent resolutions, which require the approval of both chambers, but not the approval of the President. These do not have the actual effect of being law, and are generall y used to make or amend rules that apply to both chambers. Finally, there are House and Senate simple resolutions, which only need to be passed 9 Recent scholarship als o supports this argument, as although Clark (2009, 2011) advocates the usage of the frequency of court curbing bills introduced in Congress as a valid measure of congressional preferences, he notes that there may be some concern that simple bills would not through the legisl ative process. It is true that most bills never make it out of committee; indeed, most never receive a hearing in committee. In this vein, the quality of Court curbing bills [as opposed to those reported out of committee] as a true signal about congression
87 by one of the chambers. Similar to concurrent resolutions, these do not have binding effect of law, and typicall y only involve matters that are unique to one chamber. 10 One would expect that due to the fact that only two types of legislative activity cited above have the potential of becoming actual law (bills and joint resolutions), that the Court would only respo nd to this activity and hence perceive these types as actual threats. After all, if Congress is passing simple or concurrent resolutions that simply condemn certain judicial decisions, the Court would not be likely to alter its behavior since these types o f congressional activity may indicate the preferences of certain members, or even a chamber, but has no binding effect. Separation of powers analyses should utilize bills that are the most likely to elicit inter branch behavior, and as such should be limit ed to bills and joint resolutions. To this point, scholars studying this issue have not utilized this approach. For example, Nagel (1965, 925) identifies bills, but excludes resolutions and amendments, and bills that are designed to overturn or reverse a s ingle decision. Often the exclusion of these types of measures is done for practical reasons, as opposed to theoretical ones. For example, Nagel suggests that these resolutions, amendments, and case in proposals which would 926). Nagel understood the utility and importance of including constitutional amendments (joint resolutions), but the high costs of data collection obviously placed limits up on his research design, causing him to exclude these measures. 10 The information regarding the different types of legislative activity, including additional noteworthy items http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=BILLS
88 In an effort to provide a more thorough analysis, Clark (2009, 2011) utilized court curbing bills in his work, which included House and Senate bills, and also joint resolutions. However, Clark also included simple and concurrent resolutions, which once again does not have the binding effect of law. 11 While Clark did not identify many instances of resolutions, the inclusion of such legislative activity in his work can be seen as problematic, since they are treated as equally hostile acts as actual bills and constitutional amendments that are likely to elicit a response from the Court. The Court may not view these resolutions as a legitimate threat since they indicate the preferences of a chamber th at generally cannot garner a consensus and will not become law. I ncluding simple resolutions in the analysis may introduce a measurement bias that inflates the number of alleged threats in a particular year, as many of these events could be deemed to be ho llow. Therefore, the approach adopted in this dissertation is one that utilizes only bills and joint resolutions, which should elicit the appropriate inter branch behavior. Data Collection Consistent with prior separation of powers literature, one key poi nt of this dissertation is to determine the extent to which there is inter branch constrain t between Congress and the judiciary In order to identify appropriate court curbing and rewarding bills in a reliable manner, legitimate threats and incentives need to be identified that would be most likely to elicit inter branch behavior. This dissertation identifies every bill from 1925 2008 that was sent to the judiciary committee of either chamber. From this population, which total over 60,000 bills, over 7,100 measures that were actually 11 To review all of the bills and resolutions that Clark includes in his analysis, see Clark (2011, 276 297).
89 reported out of a committee were read to determine whether the bill represented an attempt to sanction the courts by attacking it institutionally, or attempted to reverse particular decisions. In addition, these bills were also read to see whether Congress was attemptin g to positively reward the courts In order to identify the appropriate bills and joint resolutions, several sources were used. First, the Congressional Bills Project (Adler and Wilkerson 2010 ) was used to identif y House and Senate bills that were introduced and subsequently referred to the judiciary committee and reported out. However, since this dataset only identifies legislation from 1947 present, the i ndex to the Congressional Record was used to identify the same type of bills from 1925 1946. Unfortunately, the Adler and Wilkerson dataset does not include joint resolutions, which contain most of the constitutional amendment attempt s. For these measures the index to the Congressional Record was also used t o identify the relevant joint resolutions from 1925 1972. Finally, THOMAS online was used to identify the remaining measures from 1973 2008. In addition, this online source was also used to cross check the bills identified by the Adler and Wilkerson set from 1973 2008, with no discrepancy found. A summary of the different sources used for data collection is found on Table 3 3. Following the identification of these measures, each bill and joint resolution that was referred to a judiciary committee and subs equently reported out from 1925 2008 was then read and coded regarding whether the meas ure curbed or rewarded the courts This is an improvement over past techniques of data gathering, which strictly
90 relied on keyword searches or synopses to identify legis lation, since the entire sample of bills being reported out of the committee are included in the analysis. From this aggregate data, several dependent variables will be utilized in this analysis. The first is a count variable of all court curbing bills tha t are reported out of the House Judiciary Committee from 1925 2008. Likewise, the second dependent variable is court curbing bills reported out of the Senate Judiciary Committee during the same time frame. The third a nd fourth dependent variables are als o count data and consists of court rewarding bills reported out of the House and Senate Judiciary Committees from 1925 2008. However, court rewarding involves a broad array of activity, which includes measures that not only expand the judiciary by addin g judgeships, courts and terms for additional hearings, but also traditional rewards including such items as salary increases and additional court pers onnel. As will be presented in C hapters 4 and 5, there may be different motivations behind expanding the judiciary as opposed to engaging in other traditional forms of court rewarding behavior. For this reason, in addition to all House and Senate court rewarding bills, the rewarding measures were segregated into those that expand the federal judiciar istrative court rewarding non administrative court rewarding dependent variables permits separate analyses to be conducted for each chamber. Methods As the dependent va riables are comprised of the number of court curbing or court rewarding bills identified in each chamber per year, it is event count data which can be modeled using either poisson or negative binomial regression. Although the
91 Poisson model is the primary m ethod for event count data, negative binomial regression is appropriate when the data exhibit over dispersion. Since some of the models exhibit such effects, negative binomial regression will be used in most of the analyse s. 12 Some may argue that since t his data occurs over time, that time series models may be a better method to use. However, i n a recent work, Clark (2011 137) justified the usage of a negative binomial regression in also modeling court curbing legislation as a dependent variable, and not ed that Although the primary empirical model used to model event count data is the Poisson regression model, there is an ongoing debate in the literature about the best way to treat count data that are also time series data (King 1989; Cameron and Trivedi 1998, 227 228; Brandt, Williams, Fordham, and Pollins 2000). Clark performed several diagnostic tests, 13 which indicated that his data was overdispersed but did not exhibit other time series dynamics, including serial correlation. In such instances, he not ed that negative binomial regression was most appropriate to use. This study utilized several similar diagnostic tests and determined that some of the models did in fact display overdispersion, but that there were inconclusive results 12 Over dispersion is detected in the negative binomial model by the dispersion parameter (the alpha estimate). If the dispersion parameter equals zero, then the negative binomial model collapses into a Poisson regression. However, if the dispersion parameter is significantly greater than zero, and close to one, then the data is over dispersed, and a negative binomial model is more appropriate. Some of the models in this analysis indicate that the alpha was as high as .78, and therefore, the negative binomial regression model was selected. For an explanation as to the dispersion parameter, see: http://www.ats.ucla.edu/stat/stata/output/stata_nbreg_output.htm 13 The first diagnosti c test Clark performed was a likelihood ratio test to determine whether there was overdispersion. Clark then tested to see whether there was serial correlation by estimating the residuals from a model, and then seeing whether there is a correlation between the current and lagged residuals. concluded that th e data was not serially correlated, but did display overdispersion, indicating that negative binomial regression was an appropriate method to use.
92 regarding the presen ce of serial correlation. 14 Therefore, this study uses both count and time series methods to model court curbing and court rewarding activity. In particular, negative binomial regression is used for models that encounter overdispersion but not serial correl ation, while a Cochrane Orcutt regression model is used when there is evidence of serial correlation. It should be noted however, that although substantively the magnitude of the reported effects vary slightly by method, the same practical results occur re gardless of which approach is used. Hypotheses and Independent Variables With appropriate legislation most likely to elicit inter branch interaction identified, and an appropriate estimation strategy and model presented, several formal hypotheses can now be presented which may help reconcile the previous literature. As these hypotheses involve particular variables, a brief introduction regarding the subject matter of the variable to be examined will be presented first, and will be followed by a formal hypo thesis and a description of the measure regarding how the hypothesis will be tested. 15 14 In order to identify the possible presence of serial correlation, several diagnostic tests were used. Firs t, similar to Clark (2011), the residuals were estimated and then tested to see whether there was a correlation between the current and lagged residuals. While most of these tests were not significant revealing a lack of serial correlation, some of them di d obtain significance. A second commonly used test, the Durbin Watson statistic was also used, which indicated in all models that there was no occurrence of serial correlation, since all results fell between 1.760 and 2.240. Therefore, due to these diverge nt results, the Cochrane Orcutt Regression method will also be used in models displaying serial correlation, which corrects for the possible effects from it. In models not displaying serial correlation, negative binomial regression will be used, which was the same method used by Clark (2009, 2011). 15 It sho uld once again be reiterated that while this study examines the relationship between Congress and the entire federal judiciary, many of the independent variables directly involve the Supreme Court. The Court, as the primary representative of the f ederal judiciary, is the main institution that Congress focuses on in deciding whether to engage the federal courts. In other words, Congress is more prone to react to unfavorable decisions by the Supreme Court, or an institutionally divergent Court, rather than pay activities, Congress often attempts to control the inter branch relationship by targeting the lower courts as well. Thus, many of the independent variables examine the inter branch relationship through the activity of the Supreme Court.
93 Judicial Review The power of judicial review is perhaps the greatest check that the judiciary has against the other branches. After all, this power has the potential ef fect of forcing compliance by the other majoritarian branches, and ensuring that the Constitution is correctly followed. Recognizing the importance of this power, several of the Congress centered studies include this variable in their analysis. Whereas Nag indicated that more instances of judicial review were related to the introduction of court curbing legislation, Clark (2011) found no such relationship. In spite of these divergent results, the inclusion of this variable is critically i mportant in the separation of powers analysis as it represents a direct institutional threat that would most likely elicit a response from Congress. Based on both Nagel (1965) (2011) studies, formal hypotheses involving judicial review and bo th court curbing and court rewarding legislation can be stated as follows: 1. If the Supreme Court is more active in its use of judicial review, then Congress is more likely to respond with court curbing san ctions 2. If the Supreme Court is more active in its use of judicial review, then Congress is less likely to respond with court rewar ding incentives The basis of these hypotheses is that Congress would view any attempt by the Court that declares its legislation unconstitutional as being a hostile act Therefore in response, Congress would be more likely to signal a sanction to the Court by reporting out of committee court curbing measures. Likewise, as the Court utilized less instances of judicial review, Congress would be more likely to reward the Co urt and provide various incentives as they would view the Court as being in line with its preferences.
94 It should be noted that while both chambers are expected to respond similarly to the utilization of judicial review, there may be different motivations regarding why and chamber, is expected to be based on its desire to preserve the separation of powers and maintain the institution of Congress as a whole. Thus, the Senate likely views judicial review as hostile towards the institution of Congress itself and therefore responds accordingly. The House, on the other hand, is likely to be more motivated by public pressure and sentiment due to the shorter election terms. The resp onse in the House is therefore likely targeted at satisfying particular constituencies, as it would pursue attacks or rewards based on public demand. As judicial review by its very nature is striking down a law enacted by an institution that is representat ive of the majority, it is anticipated that the public would therefore support such responses, and hence the House as the more representative chamber, would react. Regardless of the underlying motivations, the same outcome is expected, with both chambers r esponding to the increasing or decreasing frequency of judicial review. In order to test for this hypothesis, an adequate measure is needed that accounts for all instances of judicial review. One such measure that is available is a count of decisions wher e the court utilized judicial review to declare acts of Congress unconstitutional. The data for this variable was gathered by Clark and Whittington (2007), and was utilized by Clark (2009) to show that there was an association between court curbing in one year with a decrease in the number of laws held unconstitutional by the court the following year. While Clark (2009) used judicial review as a dependent
95 variable, it is important in any separation of powers analysis involving Congress and the Court, as it displays responses by both institutions, and is thus included in this analysis. When one examines the incidents of judicial review over time, several patterns emerge, which support its inclusion in th e analysis. As seen on Figure 3 1, which displays all la ws that were overturned by the Supreme Court from 1925 2006, the Court appears to utilize judicial review more frequen tly during certain time frames. The highest period of such activity was just prior to 1937, when the tension between the Supreme Court a nd the other branches of government was arguably at its height during curbing activity that were observed in C hapter 2. Likewise, there were increasing amounts of judicial review seen during 1989 and 1995, which also corresponds to increasing trends in court curbing legislation. These trends suggests that one potential factor motivating Congress to use cou rt curbing or court rewarding measures may be based on the utilization of judicial review. Based on these trends a nd general observations, it appears that the inclusion of judicial review is both justified and warranted in this study. Unanimity on the Court that there would be less court curbing in the presence of a unified or unanimous Supreme C ourt. According to Nagel, if the Supreme Court was more divided in its opinions, Congress would be more prone to engage in curbing activity, as it may view the Court as being an easier target for Congress to wage institutional assaults. Based on this theory, formal hypotheses can be stated as follows:
96 3. If the Supreme Court is unified in its decision making then Congress will be less likely to report less court curbing sanctions out of committee 4. If the Supreme Court is unified in its decision making, then Congress will be more likely to report more court rewarding legislation out of committee. In addition to the explanation cited a bove, there is another reason why Con gress may pursue attacks or rewards toward the Court based on the composition of it s opinions. When the Court issues more opinions with dissents, it indicates a fractured and divided institution, which in turn may be deciding controversial disputes or so c alled These disputes may not only divide the justices themselve s, but also the public. Hence, a s Congressmen are primarily motivated by being reelected, they pursue policy in accordance with the preference s of their constituents. C ourt curbing and rewarding may result as an appeal towards constituents, who may have disagreed with the divisive Court decision. In order to test these unanimity hypotheses, the percentage of opinions with at least one dissenting opinion by term is in cluded in the analysis. This variable is similar to the one utilized by Hendershot, Hurwitz, Lanier and Pacelle (2013), who recently examined the decline in the norm of consensus on the Court, and attributed the decreasing amount of unanimous opinions in p art to the creation of the discretionary docket. This variable is important in this analysis, as it is believed that this pattern of judicial decision the Court following the Judiciary Act of 1925. When this variable is visuall y depicted, as seen on Figure 3 2, an increasing trend is immediately noticeable. This is consistent with prior studies that examined the decline in the consensual nature of the opinions on the Court, and clearly shows that there was a drastic increase in diss enting opinions during the 1940 s. The overall trend
97 identified coincides with the increasing court curbing rate and decreasing court rewarding rate, indicating the potential relationship between these variabl es, and suggests that perhaps Nagel was correct in his initial assertion. Changing Issue Agenda of the Court As this study examines the changing relationshi p between Congress and the judiciary scholars should also consider the changing issue agenda on t matters, as he found that as the Court decided more cases involving economic ther scholars have studied the changing nature of the agenda, and have shown that since the conferral of the discretionary docket, the Court has shifted from primarily resolving economic disputes, to deciding more controversial cases involving civil libert ies and rights (Pacelle 1991; Lanier 2003 ; Baird 2008 findings, the changi ng agenda of the Court may play a role in the relationshi p between Congress and the judiciary s agenda can be stated as follows: 5. If the Supreme Court defines landmark precedents in certain areas, then Congress will be more likely to respond with court curbing sanctions. 6. If the Supreme Co urt defines landmark precedents in certain areas, then Cong ress will be less likely to respond with court rewarding incentives. The basis for these hypotheses is that as the Court focused its attention away from economic disputes and toward civil rights and liberties, the public grew more divided. This division w as the result of the Court delving into more controversial cases, involving topics such as desegregation. In response, Congress should report out more measures targeting the Court and attempting to sanction it in an effort to adhere to constituent
98 preferen ces. This result should occur in both chambers, as a shift toward a more divisive policy area would engender disagreement among many Senators and Representatives alike. However, the opposite effect is anticipated for court rewarding legislation, as it is l ikely that Congressmen would display unwillingness to reward an institution that is deciding more disputes that conflict with their preferences. the relationship between these branc hes this dissertation uses the agenda variables identified by Hendershot, Hurwitz, Lanier and Pacelle (2012). In their analysis, they include cases that fall into the categories of civil rights/liberties, criminal, economic, institutional power, and those within the original jurisdiction of the Supreme Court. 16 In addition, Hendershot et al segregated the cases that fall under each category into landmark and non landmark decisions. 17 One would anticipate that the cases that would elicit some sort of inter b ranch behavior would be the important disputes that have long lasting effects. This is expected since most Congressmen are likely not to engage in court curbing or rewarding activity if the cases are not important, since the public may 16 In order to determine the appropriate cases for analysis, Hendershot, Hurwitz, Lanier and Pacelle util ize the Spaeth (2009) database for cases from 1953 2004, and Westlaw searches for cases from 1899 1953. In addition, they merge their results with two databases: the Wood (1998a; 1998b) data for 1899 1940, and the Wood (1994) data for terms between 1941 an d 1952. Once merged, the data produced from the Wood datasets are crosschecked with the cases found using the Westlaw approach to ensure that appropriate cases were used and that there wa s no duplication in cases. After the appropriate cases are identifie d, which are those with orally argued decisions, Hendershot et al separate the case types in the following categories: 1) Civil liberties includes civil rights, first amendment, due process and privacy cases; 2) Criminal issues include those that involve criminal procedure; 3) Economic issues include cases that involve attorneys, unions, economic activity and federal taxation; 4) Institutional power includes cases that involve judicial power and federalism; 5) Original jurisdiction cases include those that frame is extended through 2006, the relevant cases were identified using this same approach for the final two years under analysis. 17 To segregate the cases into landmark and non landmark decisions, Hendershot et al use the Congressional Quarterly which provides a detailed list of major decisions of the Supreme Court. The data for the number of these landmark cases per year are identified in Epstein, Spaeth and Walker (2007).
99 not be generally con cerned with its outcome, or the decision does not affect Congress as an institution. Therefore, this dissertation will incorporate the same case types as identified above, and will use landmark decisions in its analysis. With regard to the actual variabl es, the first involves civil rights and libertie s. As one can see from Figure 3 3, which displays the number of landmark civil rights and liberties cases per year from 1925 2008, a general increasing trend appears ove r time. It is particularly noteworthy t hat most of the increasing trend began with the Warren Court, which lasted from 1953 to 1969. However, even after this period, the Court continued to decide landmark cases involving this issue every term, which represents a shift from the earlier decades, in which relatively few civil rights and liberties cases were be ing resolved. This is important as the increasing trend corresponds to the pattern observed for court curbing legislation, and is the opposite for court rewarding legislation, suggesting a po ssible relationship between these variables. The next case type that is examined involves landmark criminal disputes. Unlike civil rights and liberties, there does not appear to be a discernible pattern which can be seen in Figure 3 4. While there are se veral years in which the Court delved into this area, which appear to increase during the Warren Court, and even more recently with the Rehnquist Court, the pattern observed is more sporadic. In spite of the apparent sporadic nature of these decisions, it is still possible that these case types may lead to hostile behavior from the judiciary. After all, these cases often expand criminal rights, as seen in Miranda v. Arizona (1966), and may produce some public outcry in response. Hence, Congress may attempt to curb the Court more and reward it in response to more landmark criminal disputes being decided.
100 The next issue area examined is landmark economic disputes O ne case see from Figure 3 5 that similar to landmark criminal cases, no real trend is displayed with cases being decided by the Rehnquist Court, there appears to be sporadic rulings in this area over time. e Court Deal. However, once the threat of Congressional sanctions, including the infamous s. Figure 3 5 appears to show the immediate consequence of the threat, as the Court quit handing down landmark cases involving economics, and began to shift its focus to other areas of law. The fourth agenda item involves cases regarding institutional pow er. As these cases primarily involve federalism issues, it is expected that some sort of relationship disputed over the time frame under analysis Yet, as displayed on F igure 3 6, with the his area also appear sporadic. However, the number of institutional power cases observed recently is substantively interesting, as many have noted the ch anging nature of federalism since Rehnquist became chief justice (Fallon 2002; Berger 2006). Unlike government and legislation favored by Congress. This shift in deci sion making may have inter branch implications, as Congress likely disapproves of the new federalism interpretation under the Rehnquist Court. Therefore, these cases are included in the
101 analysis to determine to what extent, if any, institutional power disp utes raise inter branch concerns. The final agenda item included in this analysis involves original jurisdiction cases. These case types are those that fall under Article III of the United States Constitution, and primarily include disputes concerning am bassadors, and controversies betwe en states. As shown in Figure 3 7, landmark disputes involving this area are relatively rare. While these cases occur infrequently, they are still important in this analysis, as it is possible that inter branch behavior ma y be observed in response to these agenda items. Polarization and Partisanship Separation of powers studies have largely omitted any analysis involving the potential role that polarization may play between the branches. While Nagel (1965) does present hyp otheses involving the political parties, they largely involve efforts to describe the conditions when a particular political party is more successful in the introduction of court curbing legislation. 18 While his work does not formally address polarization, as that phenomenon had not yet taken its modern form, it is important as it suggests that the composition of a political party may make a difference regarding the success of inter branch attacks. However, recent congressional studies suggest that polariza tion is an important legislative gridlock, which asserts t hat less polarized periods lead to a greater prospect 18 In particular, Nagel (1965) asserts and finds that court curbing efforts are more successful when Congress is composed of a particular party that is attacking the Court. Thus, Democrats are more successful during times when Congress is co mposed of more Democrats, with the same pattern being observed when more Republicans are in Congress.
102 for measurable policy compromise and change. Simil arly, D odd and Schraufnagel (2009) argue that polarization is related to policy productivity, but assert that it is the moderate polarized time frames that exhibit the most policy productivity with regard to landmark legislation and that too much or too li ttle polarization leads to stalemate. As polarization appears to play a role in the introduction and passage of legislatio n, it is also likely to affect c ongressional legislation involving the judiciary and is therefore included in this analysis. Formal hypotheses involving polarization and the relationshi p between Congress and the judiciary can be stated as follows: 7. If Congress gro ws more polarized, more court curbing legislation will be reported out of committee. 8. If C ongress grows more polarized, less court rewarding legislation will be reported out of committee. These hypotheses are based on the underlying premis e regarding the motivation for c ongressional behavior. As Congressmen are primarily concerned with seeking reelection, it is anticipated tha t they will pursue policy that garners public support. However, as the parties grow more polarized, it is likely that each will pursue partisan legislation targeting their p articular constituencies. This should result in Democrats pursuing liberal legislat ion, and Republicans pursuing cons ervative policy. While the federal judiciary is supposed to be insulated and should be unaffected by partisan politics, it is likely that the parties may find it advantageous to pursue attacks against the judicial branc h during more polarized periods. This may esp ecially be the case if the courts are handing down rulings involving socially divisive issues. Thus, the pursu it of policy targeting the courts may simply be a partisan effort to garner support among a particula r constituency. For similar reasons, as it may be popular to attack an
103 institution during a more polarized era, it would likely be expected that it would be unpopular to reward it, and hence the opposite pattern is expected for court rewarding legislation. It should be noted that differences may be observed between the chambers regarding this variable. As explained in C hapter 2, due to shorter election cycles, members of the House have to constantly seek reelection. This may therefore cause these members t o more actively seek policy that is polarizing in order to garner more support for their reelection bid. This likely results in House members being more prone to attack the federal judiciary during more polarized time frames if it is electorally advantageo us to do so. However, this does not mean that Senators are immune from similar electoral concerns. As a third of the membership is up for reelection every two years, it is possible that similar effects may be seen regarding polarization. It is simply propo sed that House members may be more prone to engage in host ile behavior due to electoral concerns of its entire membership. DW Nominate values are used. In particular, the yearly difference of the 1 st Dimension of the DW Nominate value between each party median in the House and Senate is utilized. To ill ustrate this variable, Figure 3 8 shows the ideological difference between members in the House of Representatives and Sen ate members from 1925 2008. While there was at first a decreasing trend in polarization, a progressive increasing trend is noted following the Court packin g plan in 1937 to present day. This increasing trend in polarization coincides with the observatio ns made in C hapter 2 regarding the increasing patter n seen with court curbing legislation, and the decreasing trend
104 involving court rewarding legislation. This suggests that polarization may not only play a role in the legislative process in general, but m ay also spillover and effect the relationship between Congress and the judiciary. Ideological Institutional Distance Similar to polarization between the parties, ideology between the branches is also expected to affect the relationship between Congress a nd the federal judiciary. This potential relationship is also that during periods of high court curbing activity, there was slightly a greater proportion of Congresses having a different partisan complexio n than the majority on the Court. Nagel noted that this suggests that there is a weak causal relationship present, and that different parties between the institutions may affect this inter branch relationship. study, there is a rich colle ction of scholars that study separation of powers, who include measures to test for the possibility that ideological differences between institutions may affect the relationship between Congress and the Court. 19 These studies suggest that Congress will atte mpt to constrain the Court as the two institutions grow further apart ideologically. Based on these prior works, formal hypotheses can be stated as follows: 9. If the institutional ideological distance between Congress and the Court increases, more court curb ing legislation will be reported out of committee. 10. If the institutional ideological distance between Con gress and the Court decreases, more court rewarding legislation will be reported out of committee. For measuring the institutional distance, prior sepa ration of powers studies have utilized various measures, which were often scaled differently for each institution, and 19 See e.g. Spiller and Gely (1992), Spiller and Tiller (1996), Hansford and Damore (2000), Bergara, Richman and Spiller (2003), Harvey and Friedman (2006 2009), Chutkow (2008), Clark (2009, 2011), Bailey and Maltzman (2011), and Segal, Westerland and Lindquist (2011).
105 which has produced divergent results between these studies. 20 In order to undertake a more consistent approach, this study utilizes measu res from Hendershot, Hurwitz, Lanier and Pacelle (2012), who use DW Nominate values for the relevant Court. For the distance between the House and the Court, the median positi ons of the House and the Court are used. In order to adequately capture the relationship between the Senate and the Court, Hendershot et al theoretical models, and incorporate the filibuster and veto override posit ion in different models. This dissertation will utilize the filibuster model, since unlike the House, for any legislation to make it through the Senate, the bill would have to garner enough consensus to override any filibuster attempt. With regard to the visual depictions of these variables, some interesting trends are immediately noticeable. First, with regard to the ideological distance between the House and the Court, which is displayed on Figure 3 9, there was an all time high of disagreement between t hese instit utions from 1933 occurred, the hostility between these institutions eased, and the ideological distance decreased. The distance then oscillates back and forth during different times until it reaches another high poi nt around 1975 through 1994. This intuitively makes sense, as there was a Democratic Congress challengin g an increasingly conservative C ourt during this era. However, in 1995 the Republican Revolution occurred, which was supposed to ease the tension betwee n the ideologically aligned branches. However, as 20 For example, Segal (1997) utilized ADA scores to measure Congressional preferences, and Segal and Cover (1989) measures for judicial pre ferences, and found that Supreme Court justices vote their sincere into a common space and reached opposite conclusions.
106 seen in C hapter 2, such a pattern is not observed, as Republicans attacked the conservative Court, which raises questions regarding a potential relationship between these variables. The Senate on the other hand, displays different patterns, and is presented on Fi gure 3 10. As observed in the figure, the disagreement between the Senate and the Court are largely found at the beginning and en d of the 1925 2008 time frame This is largely the result of the di fferent parties that were in the Senate and t he complexion of the Court. Based on these depictions there appears a basis to believe that institutional distance may play a role in this analysis, as parties appear to affect the relationship between the cham bers and the Court. Divided Government The final variable included in this analysis accounts for instances when there is divided government. Congress scholars have debated whether this may adversely affect the legislative process (Mayhew 1991; Binder 2003) However, most separation of powers studies omits this variable, as they strictly examine the relationship between Congress and the Court. One notable exception is Chutkow (2008), who included a divided government measure, and concluded that ideology did not matter with regard to the passage of jurisdiction stripping legislation. Based on this finding, and the debate among Congress scholars, the following hypotheses can be stated: 11. If government is divided between the executive and legislative branches, th en no effect will be seen regarding court curbing measures that are reported out of committee. 12. If government is divided between the executive and legislative branches, then less court rewarding measures will be reported out of committee.
107 Regarding court c urbing, no effect is expected, since the President is not directly involved in the legislative process. While the executive branch does administer legislative programs through executive agencies, based on the findings of Chutkow, it is likely that conflict ing ideology between the legislative and executive branches would not affect Congres On the other hand, the President is directly involved in the process of selecting judicial nominees. As expanding the Court and judgeships is a form of court rewarding, it is anticipated that divided government would result in less attempts to reward the court through expansionary legislation. After all, one political party would be reticent to introduce or report out measures from committee adding judgeships if the President was from the opposing party and would be the one making the nomination. Similar outcomes should be seen in both chambers, since while the Senate has the power of advice and consent, the House still plays a role in the process, as they introduce and also approve of any measure that expands the courts. In order to test for the potential relationship involving divided government, a simple dichotomous control is used. For the Senate models, the variable is coded fo r times when there was divided government, and hence when a majority of the Senate was composed of a different party than the President. Likewise, the data is coded similarly for House models, accounting for party differences between the majority membershi p in the House and the executive. It is hoped by including this variable, a better understanding can be gained with regard to the reasons why the House and Senate may be motivated to attempt to control the Court.
108 Concluding Comments This chapter provided much needed background information regarding prior works that have examined the relationshi p between Congress and the Court Based on these past studies, a research design was presented, which attempts to build on and improve upon prior works. It is believ ed that the approach outlined in this chapter will permit a proper and thorough analysis between these institutions. While several aspects are unique to this study, including the time frame under analysis, the incorporation of court rewarding bills, the us age of measures that were reported out of committee as opposed to those introduced in Congress, and data collection, this study attempts to remain true to prior works in correctly identifying the relationship between these institutions. Thus, the independe nt variables that were reviewed and selected for this dissertation are those most likely to elicit inter branch behavior, and have a strong theoretical foundation based on the prior literature. In conclusion, it is believed that a better understanding of h ow and why Congress, and more particularly each chamber, approaches its relationship with the judicial branch will be gained through utilizing the approach presented here, and viewing it through the lens of the principal age nt model outlin ed in Chapter 2
109 Figure 3 1. Judicial r eview ( l aws o verturned) by y ear, 1925 2006 Figure 3 2. Percentage of o pinions with a t least o ne d issent by t erm, 1925 2006
110 Figure 3 3. Landmark civil liberties cases d ecided by the Supreme Court by y ear, 19 25 2008 Figure 3 4 Landmark c riminal c ases d ecided by the Supreme Court by y ear, 1925 2008
111 Figure 3 5. Landmark e conomic c ases d ecided by the Supreme Court by y ear, 1925 2008 Figure 3 6 Landmark i nstitutional p ower c ases d ecided b y the Sup reme Court by y ear, 1925 2008
112 Figure 3 7 Landmark o riginal j urisdiction c ases d ecided by the Supreme Cou rt by y ear, 1925 2008 Figure 3 8. Polarizat ion in the House and Senate by y ear, 1925 2010
113 Figure 3 9 Ideological i nstitutional d istance b etween the House and the Supreme Court, 1925 2008 Figure 3 10. Ideological i nstitutional d istance b etween the Senate and the Supreme Court, 1925 2008
114 Table 3 1. Relative s uccess of s even h igh f requency c ourt c u rbing p eriods [Material adapted from Table 2, presented in Nagel (1965, 927) ] Year Number of Bills Out of Committee Per Cent of Bills Out of Committee Judicial Retreat Composite Success 1802 04 1 50 Yes Yes 1823 31 3 25 Yes Yes 1858 69 11 50 Yes Yes 1893 97 1 11 No No 1922 24 2 18 No No 1935 37 6 16 Yes Yes 1955 59 2 4 Partial No Table 3 2 Court r espons e to c ourt c urbing p eriod [Material adapted from Table II presented in Rosenberg (1992, 396) ] Independence Subservience 1893 1897 1823 1831 1802 1804 1922 1924 1 955 1959 1858 18 69 1963 1965 1977 1982 1 935 1937 Table 3 3. Sources u sed in d ata c ollection Year Bills Joint Resolutions 1925 1946 Congressional Record Congressional Record 1947 1972 Congressional Bills Project Congressional Record 1973 2008 Congressional Bil ls Project THOMAS Online
115 CHAPTER 4 THE RELATIONSHIP BETWEEN THE SENATE AND THE FEDERAL JUDICIARY Introduction As detailed in C hapter 2, the relationship between Congress and the judiciary has changed over time. The changing relationship was largely the result of the constitutional power afforded to Congress that permits it to alter the appellate jurisdiction of the Court. While this power has been utilized several times to alter the structure of the federal judiciary, perhaps no change in the judicia ry was as important as those implemented in 1925, as Congress granted the Supreme Court ultimate discretion in docket selection. This grant of discretion effectively created a ba rgain between these two institutions in which Congress acted as a principal, a nd subsequently monitored the activity of the Court to determine how it utilized its newfound power. Overall congression al attempts to control the federal judiciary through sanctions and incentives were then displayed, which was manifested through general trends in court curbing and court rewarding legislation over time. In addition, C hapter 3 introduced several possible motiva tions to potentially explain how Congress engages in such activity to attempt to control the judiciary The potential effects of t hese motivating factors, which include judicial review, unanimity on landmark agenda construct, party polarization, ideological disparity between the branches, and div ided government, appears to exhibit covariance overtime These sam e factors, however, are likely to exhibit different relationships depending upon the chamber characteristics and as such, this chapter will pursue those relationships that may exist for the Senate.
116 From the founding, each chamber was designed differently and given different constitutional responsibilities, which likely affect how each chamber approaches each other, the other branches, and also various issues. As the Senate arguably has a closer relationship with the federal judiciary due to the Advice and Consent process, its relationship will be examined first. It is anticipated that in the context of this unique tie, and longer election cycles, s enators will be more deliberative in t heir approach with the judicial branch It is likely that in undertaking such an approach, the Senate will monitor the actions of the judicial branch closer than the House, and will respond accordingly. In order to observe appropriate inter branch interaction that may display the relationship between the Senate and the judici ary, this chapter will first examine instances of court curbing behavior. A n overview of this topic will be provided, and will be followed by a qualitative account of salient court curbing activities over time. A quantitative analysis will the n be performe d that will explicate how the Senate has engage d in this behavior. A corresponding analysis for Senate court rewarding will then be undertaken. This principal agent perspective of these institutions will yield valuable insights into the development of the inter branch monitoring, sanctioning and rewarding activities throughout the modern era of judicial branch. Before proceeding, however, it is important to reiterate that while the Senate curbing and rewarding efforts target the entire judiciary, particula r emphasis is afforded to the relationship between the Senate and the Supreme Court in this chapter. This emphasis is placed on the Court as it is the primary representat ive of the judiciary. As such, and as explained in C hapter 2, each chamber actively mo nitors judicial behavior through the judiciary c ommittee, which pays close attention to the acti ons of the Court.
117 This monitoring activity focuses on all aspects of judicial behavior, but heavy emphasis is obviously placed on how the Court is ruling either on a specific case or issue type. Each chamber therefore responds to the events occurring on the Court, which often include measures targeting the entire federal judiciary Therefore, the following sections will highlight the relationship between the Sena te and the Court, while continuing to describe how the Senate attempts to control the entire judiciary through the lens of the principal agent model. Senate Court Curbing Legislation over Time Attempts to control the judiciary through sanctions have obv iously varied over time. This is especially seen in Figure 4 1, which shows the amount of Senate court curbing bills reported out of committee from 1925 2008. In spite of this variation, when one examines the issue by historical era, several distinct pat terns and trends emerge with regard to the incidents of Senate court curbing legislation. Therefore, the following sections will examine this issue during different time periods. In addition, several trends can be noticed when one examines who is sponsorin g such legislation. After all, conservatives may be supporting such legislation during liberal eras in the Senate and vice versa. In fact, this general trend appears to be th e case, as detailed in Figure 4 2, which shows the individual ideology of those th at sponsor such legislation, and those that are in the majority party in th e Senate during the same period. However, these various patterns of ideology and sponsorship also emerge by similar historical era as those involving general court curbing trends id entified in C hapter 2, and therefore these general patterns will also be considered by time period below.
118 Initial Conservatism and the Switch in Time: 1925 1938 Beginning in 1925, the federal judiciary received a gift from Congress. This particular awar d endowed the Court with the ability to choose the cases that it wanted to hear, and it would substantively alter the relationship between Congress and the federal judiciary over ensuing decades By granting the Supreme Court a discretionary docket, Congre ss not only relieved a significant administrative backlog, but also allowed the Court to play a more prominent policy making role by actively entering into salient disputes. This transformation was a progressive one that would occur over the next several d ecades. Yet, it should be noted that during the transformation, Congress still retained a significant check on the the right at controlling the appellate jurisdiction of the Court. Following this grant of discretion, the C ourt did not radically change the type of cases that it was hearing. In fact, the Court was ideologically aligned with Congress during this time, and it continued to focus on economic regulation questions, of which it frequently ruled in a conservative fas hion. Thus, as disp layed in Figure 4 1, there was little need or justification to curb the judiciary during this initial time frame of 1925 1930. A ccording to Figure 4 2, the few attempts that were made during this era were attempted by those who were mo re liberal than the ruling party in the Senate. Intuitively this makes sense, as liberals were attempting to stifle the conservative economic platform adopted by Senate Republicans and the Supreme Court during this era. Furthermore, conservatives typically was also seen during the beginning of this historical era. Thus liberal court curbing conservatives at this time
119 The prosp erity enjoyed by the initi al phases of this epoch swiftly came to an end with the advent of the Great Depression. The economic collapse that swiftly reverberated across the country caused a change in partisan control of the Senate, as Democrats rose to pow er on a platform of market regulation and Keynesian stimulus As reviewed in C that may persist for several decades (Key 1955, 1959; Burnham 1967; Sundquist 1973). This shift is important as it suggests that the electorate may no longer have adhered to the same ideological values as those of the initial portion of this era. Thus, while the p artisanship of the electorate and of Congress may have shifted, the Court still retained were championed by successive Republican administrations and was buttressed by th e presence of some conservative Democrats This ultimately would foreshadow a battle between Congress and the Supreme Court. The growing tension between these institutions and the ensuing battle can be seen with the incremental increase in the usage of cou rt curbing legislation during the latter half of this era. This i ncrease is displayed on Table 4 1, which shows all Senate court curbing bills that were reported ou t of committee from 1925 1938. From this table, one will notice that initial court curbing measures during the beginning of this era, from 1925 1931, primarily focused on the jurisdiction of the court as it pertained to evidentiary rules and criminal procedure. However, the complexion of the court curbing measures became more of a threat foll owing 1931, as the Senate began targeting specific cases and issue areas that the Supreme Court had previously decided. One
120 significant example of this is S.J. Res. 144 (1937), which was an attempt to pass a constitutional amendment that would prohibit chi ld labor. This amendment was no doubt a continued effort to overturn a previous decision by the Court, Hammer v. Dagenhart (1918), in which the Court ruled that Congress had exceeded its power under the Commerce Clause in passing the Federal Child Labor Ac t of 1916. While this decision would later be overturned by the Court in the decision of United States v. Darby Lumber Company (1941), it is noteworthy that there was still tension between the branches involving several issues including this one during thi s time frame. making on individual issues, the Supreme Court faced several direct institutional assaults from the Senate as wel l during the early to late 1930 s. This included one measure, Senate bill 1392 (1937), which would add more members to the Supreme Court. Another proposal, Senate bill 3232 (1938), would force members on the Court who reached a certain age to retire. These measures were obvious attempts by Congress to sanction the Court and its current path of decision making, and could certainly be viewed as direct threats to the Supreme Court. The battle between these institutions finally ended as vote enabled a new coalition that would uphold the New Deal regula tory efforts backed by President Roosevelt and the realigned Democratic Senate. This change in rulings by targeti ng the institution of the Court would come to a close This era i s clearly displayed on Figure 4 1, as the court curbing e fforts in the Senate exhibit a dramatic decrease following 1938. Interestingly, the preced ing year, 1937, witnessed a peak of four pieces
121 of court curbing legislation that was repor ted out of committe e. Once the C ourt began to alter its path of decision making, the Senate concurrently stood down and would desist from advancing new sanctions. The Court clearly signaled to Congress that it would now comply with enacted regulatory intrusions through sign ificant rulings, such as United States v. Carolene Products Co (1938). While this case was rather inconsequential on the surface and involved would essentially defer to the leg islature in any impending economic cases, while at the same time make use of its new agenda discretion to scrutinize cases involving 1 From a separation of powers perspective, this newly gr anted deference is critically important as it s uggests that the Court recognized the peril posed by the unified New Deal coalition and shifted its rulings accordingly. Not only did it do so in some individual cases, but as indicated in United States v. Ca rolene Products Co. (1938) the 1 The Court specifically noted that the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the fa cts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge an d experience of the legislators ( United States v. Carolinen Products Co. 1938, 152). Footnote four o f this opinion however indicated that the Court was potentially operation of the presumption of constitutionality when legislation appears on its face t o be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation On restrictions upon the right to vote, on restraints upon the dissemination of information, on interferences with political organizations, as to prohibition of peaceable assembly. Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect
122 Court would establish whole new doctrines that reversed its past stance and shifted its future focus. This case is therefore important as it marked the end of the first historical era, as the tension between the branches beg an to dissipate. With regard to who was attempting to curb the Court, there was a slight ideological shift amongst the protagonists during this political era. In the late 1920 s to 1932, seven of the eight court curbing measures were introduced by a Repub lic an. However, the primary source was Senator Norris from N ebraska, who could be thought of as a moderate who introduced five of the measures, largely targeti ng the jurisdiction of the courts regarding evidentiary matters. When the majority party in Con gress shifted toward the Democrats, more court curbing legislation was introduced in general, and by Democrats, who were responsible for nine of the eleven measures from 1933 1938. The ideology of these Democrats was generally more liberal than th at of t he individuals who had previously attempted to curb the Court. This helps explain the rise in tension between the branches, as the Court initially continued to render rulings that were conservative in nature until the end of t his time frame. The conflict r eflects considerable goal conflict between a more liberal Senate and a conservative Court. Thus, the Senatorial perceived shirking of the Court through its conserv ative decisions resulted in significant threats of sanctions f rom the Senate, including new p ropositions to either force retirement or pack the Court with more members. Ultimately these threa ts were effective, with a real likelihood present that liberal senators would follow through with these sanctions, which led to the Court modifying its tack a nd avoided a constitutional crisis.
123 World War, Post War Period, and the Warren Court Era: 1939 1969 The country soon found itself in the midst of World War II. While the war was ensuing, working relationships between the branches were relaxed, and the state of affairs continued on into the post war period, when the country was buoyed by a revitalized economy. Unfortunately for the Senate and the federal j udiciary, these easy relations did not last long, as there soon grew a renewed conflict on a new set of issues that the Court was increasingly being drawn toward. This renewed fight is displayed on Figure 4 1, in which the Senate began to introduce several court curbing bills during the middle half of th is era. Similar to the New Deal and as displayed o n Table 4 2, most of these bills were aimed at altering the path of judicial decision making, which was defined by the newly liberal policies of the Warren Court, and its active expansion of civil liberties, civil rights, and those rights afforded in crimi nal procedure. The most obvious progressive ruling of this period is Brown v. Board of Education in public education. This ruling was aimed to end segregation in the public school system. While many dispute the efficacy of the ruling and its lackluster subsequent implementation (Rosenberg 1993) the ruling was a prime example of the type of controversial civil rights cases that were being decided during this era. During this time frame, the Warren Court also expanded its arena of potential conf lict with the Senate through a h ost of controversial cases involving criminal rights. The exemplar in this area is Miranda v. Arizona (1966) in which the Court held that a criminal sus pect has to be aware of their Constitutional rights, such as the right to remain silent and the right to have an attorney, while they are being held in custody. While several additional examples of controversial criminal cases were decided during
124 this time this one is critical, as subsequent Supreme Courts have refused to extend this ruling. While the Warren Court is known for controv ersial progressive rulings within the the areas of civil rights and criminal procedure it is significant that the Senate d id not respond to these individual decisions by trying to curb or sanction the Court. Rather, as in this era are focused upon perceived attacks of the Court on the institution of Congress itself. For instance during this era, the Warren Court decided several cases involving the apportionment of members of both state and federal legislatures. In the first of these, the Court decided Baker v. Carr (1962), in which it held that claims regarding malappor tioned districts now raised a justiciable controversy. Prior to this case, the Court had refused to hear disputes involving this particular issue one that is so closely associated with the primary goals of members of Congress (Mayhew 1974). C laiming that such disputes raise d political questions, the Court had refused to hear them. Now, however, with the discretionary docket powers being fully utilized, these new liberties claims spilled over into a once verboten ground that was clearly crucial to all memb ers of Congress. Following Baker, the Court expanded this conflict and addressed the merits of several cases, including both Reynolds v. Sims (1964), in which the Court held that state legislatures had to be apportioned according to population, and Wesberr y v. Sa nders (1964), which held that federal districts had to also be apportioned correctly. The Senate viewed these decisions as a direct threat to the complexion of Congress, in which many members came from electorally safe districts during this era. By requiring that districts be redrawn to reflect the population shifts in certain states, the
125 membership of the House, and hence Congress, could dramatically change. This change would occur since most of the committees were dominated by members from rural di stricts which had more influence since the district lines had yet to be redrawn to reflect the population shift to the cities. Thus, in response, the Senate introduced S.J. Res. 103 (1965) which was a constitutional amendment aimed at preventing reapportio the people of each state power to determine the composition of its legislature and the apportionment of the membership thereof in accordance with law and the provisions of the Cons titutio bill was reported out of committee in the Senate and yet failed to pass on the floor. It is nonetheless important as it display s the types of policy development undertaken by the Supreme Court that would incur the wrath of the Senate. From a principal agent perspective, one may wonder why the Senate would respond to Court cases that appear to be direct threats to the House or to state legislatures. One obvious explanation lies in the shared goals of both chambers. Duri ng this period, both the Senate and the House were ideologically align ed and hence had similar policy making and legislative goals. By threatening to change the complexion of one of the chambers, the Court was in effect threatening the over all institution of Congress, its goals and the existing legislative agenda Thus, the Senate, as the more deliberative chamber, recognized the potential long term rami fications of the decision and responded in a manner that would send a shot across the b ow of the judicia ry and reached as far as reporting t he joint resolution out of the Judiciary C ommittee.
126 S imilarly, the Senate would likely state legisl atures as a threat to the system of separation of powers. This is readily ap parent and can be seen port, issued by Senator Dirksen: In our system of government the people have established three branches; the legislative to enact laws, the executive to enforce laws, and the judiciary to interpr et them. And it is the people through their elected representatives who in the final analysis are responsible for all laws. If the right of the people to decide how their representatives shall be apportioned is denied, as it has been, then one branch of th e three is changed without the consent of the people, and the other two branches assume a different posture. If the method of apportioning the legislative branch is to be determined by the judicial branch, as it has, then the legislative becomes subservien t to the judicial. The concept of three coequal branches of government is destroyed. This proposed article of amendment is intended to restore to the people of a State the right of self determination and by doing so to restore the equality of the legislati ve branch with the other two branches of government. If our republican form of government is to be preserved this right of the people must be restored and protected. Senate Joint Resolution 103 will achieve this purpose (Senate Report No. 1047, 89 th Congre ss, 2d Session, March 4, 1966, 21). Thus, any determination regarding the apportionment of state legislatures were viewed by the Senate as potentially being hostile to our structure of government, and hence the Senate responded by reporting S.J. Res. 103 (1966) out of the Judiciary Committee. Another example of the Senate responding to rulings from the Supreme Court that it considered hostile to the institution of Congress involved Congressional investigations during the 1940 s and 1950 s. This time perio d witnessed the Cold War, and attempts by certain members of Congress, including Senator McCarthy, to expose potential members of the Communist party. In order to expose these alleged members, McCarthy subpoenaed hundreds of alleged Communists to testify a s to their activities
127 investigations, the Court held in Watkins v. United States (1957), that witnesses had a Fifth Amendment due process right and could refuse to answer vague or no n pertinent questions of committees. In this case, Watkins was a labor organizer who refused to respond to certain questions involving alleged former members of the Communist Party. wn activity or those who were current members, that the Congressional committee had exceeded the scope of its authorization, and hence Watkins was permitted to assert his Fifth Amendment right. In response to this case, the Senate was outraged, and reporte d out of committee Senate bill 2646 (1957), which would prevent the Court from asserting jurisdiction in cases involving Congressional committees. Apparently heeding the warning, the Court subsequently reversed course in Barenblatt v. United States (1959). In this affiliated case, Barenblatt was a college professor who was convicted for refusing to answer certain questions as to his and others involvement in the Communist party. Unlike in Watkins, the Court noted that Barenblatt had not specifically raised a pertinency challenge, and thus was unable to raise the Fifth Amendment. In addition, the Court held that any First Amendment interest that Barenblatt had was outweighed t face on the Court shows that it likely was very initial ruling in Watkins, and that it now faced a legitimate Congressional response These conflicting outcomes show that the Senate was willing to defend what it migh t reasonably view as the institutional authority of Congress to initiate and conduct investigations.
128 In principal agent terms, the Watkins and Barenblatt decisions is perhaps a perfect illustration of the model. The Supreme Court made its initial decision according to its true preferences regarding the scope of Congressional investigations. However, the decision clearly conflicted with the preferences/goals of Congress, who proposed legislation threatening to sanction the Court for what it perceived as an institution that was shirking its responsibilities by ruling against Congressional preferences. In response, the sanction, or threat thereof, was perceived by the Court as being legitimate since it clearly altered its path of decision making in rendering t he Barenblatt decision. Both cases after all were nearly identical, yet reached conflicting results. Finally, it should be noted that while the Senate was focusing on preserving the institutional status of Congress through issuing potential sanctions via the legislative process, the Court continued on its path of transformation by expanding the types of cases that it would hear. The beginning of this transformation was detailed in the last era in the Carolene Products decision, which indicated that the Co urt would be moving away from economic disputes. However, the transformation that occurred during this era (1939 1969) involved a more activist and progressive Court willing to delve into all aspects of civil rights and liberties The willingness of the Court to play a more active role in deciding disputes cannot be overstated, as the gift of the discretionary docket once again helped transform the Court. In spite of this transformation, the Senate obviously continued to monitor the Court and threaten san ctions when appropriate. The threat of sanctions and its usage during this time frame should not be surprising, as ideologically, most of th e threats came from Republicans and conservative Democrats and targeted the more liberal Court.
129 Increasing Inter br anch Dispute From Burger to Roberts: 1970 2008 Following the Warren Court era, the Supreme Court progressively grew more conservative with the replacement of Justice Warren with Justice Burger as chief, and several Nixon appointees being placed on the Cour t. As one can see from Figure 4 1, the trend toward a more conservative Court did not halt attempts by the Senate to curb making process. In fac t, as also displayed on Table 4 3, which lists all court curbing attempts repo rted out of committee during this era, it was during this time period when attempts began to dramatically increase. W hile the previous thirty year period under analysis (1939 1969) witnessed thirteen court curbing attempts, this thirty eight year period (1970 2008) witnessed fifty seven pieces of court curbing legislation. This dramatic increase is surprising, since as detailed below, the Supreme Court grew more conservative, and so too did the Senate during the latter part of this era. Thus, what resul ted was an interesting phenomenon whereby conservatives often attacked conservatives. However, before discussing the ideological nature of the Senate court curbing during this era, two points are particularly noteworthy regarding these curbing attempts. F motivated by what it perceived to be institutionally hostile decisions, the court curbing activity of this period was much more a response as to specific issues that were decided by the Court that were unrelated to Congress as an institutio n. For example, during the 1970 regarding school prayer. Senate court curbing attempts increased during the 1980 s, with the election of Reagan, and a Republican majority being placed in the Senate. While under Republican control, the Senate reported several measures out of
130 committee involving socially divisive issues, including four attempts to reverse the involving abortion. In addition, the Senate focused on a few additional issues, including crime, immigration and the environment. Interestingly, the switch in the Senate t o Democratic control in 1987 did not decrease the court curbing attempts, with the Senate reporting two measures out involving flag burnin g in 1989. Finally, in the 1990 s, as the Senate switched back into Republican hands, the increasing trend toward cour t curbing continued to occur, as the with Senators also tackling less divisive issues including tort reform, banking and anti trust litigation. Overall, the issues that th e Senate was responding to during this era was less about preserving the institution of Congress as seen in the previous era, and rather represented new threats to the Court on specific issues most of which were designed to target single issue voters and The second point worth observing in this era involves a new type of court curbing that the Senate was engaging in. Whereas prior eras focused on measures that solely involved issues between Congress and th e Court, this period witnessed court curbing measures that aimed to prevent hostile judicial action aimed toward the executive branch. This form of court curbing, labeled administrative court curbing, prevents judicial review from decisions made by executi ve officials in agencies. A prominent example involves immigration matters, and prevents courts from reviewing decisions made by or on behalf of the attorney g eneral. As displayed on Table 4 4, these administrative court curbing attempts represent nearly h alf of the overall court curbing attempts, as twenty
131 six measures were reported out of c ommittee during this era. This is remarkable considering that only three administrative court curbing measures were reported out of the Senate judiciary committee for t he entire other two eras under analysis. explanation that hinges on the general expansion of the administrative capacity of the U.S. government. The explanation begins in the 197 0 s, which ushered in the creation of including the creation of the Environmental Protection Agency in 1972, and the Occupational Safety and Health Administration in 1973. In the creation and expansion stemmed from concerns that the Republican administration under Nixon would not aggressively pursue regulatory actions involving the environment, etc., and therefore some enforcement mechanism was needed to ensure compliance with Congressional preferences. Ironically the enforcement mechanism was initially viewed as lying with the federal courts. courts should engage in searching, substantive review of the technical basis for agency Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council Inc. (1978).
132 This heightened standard of review has been noted by other scholars as seen in comments from Joseph Cooper (2005, 387), who wrote that: The federal courts since the 1970s have both subjected administrative rulemaking to more stringent procedural review and interpreted the authorizing statutes far more expansively in terms of their own sense of what the broad purposes of these statutes require. The result has been a judicia lization of the administrative system in which statutory interpretation and procedural review have provided a broad platform for judicial intervention, and by so doing increased opportunities for interest groups to use the courts to contest administrative decisions. The most formidable challenges to departmental and agency rules now come more often from interest groups acting through the courts, not from Congress. The irony is that the power of the federal courts has been resurrected to a position closer to that occupied in the late nineteenth century but with less restraint in the actual language of statutes or respect for congressional prerogatives. This passage may help explain the increase in administrative court curbing. For political reasons the federa l judiciary was given more power to interpret agency rulemaking by Congress, due to the fear that the administration would not properly implement the preferred policies of Congress. However, once given the power of inte rpretation of the rules, the federal preferred outcomes often conflicted with the preferences of Congress. Thus, in principal agent terms, the courts as the agent shirked the bargain by utilizing a standard of judicial review that was heightened, and likely against Congressional p references. Therefore, the increase in Senate court curbing is likely the result of goal conflicts, with more administrative court curbing the result of the approach taken by the federal judiciary. One may wonder whether there is an ideological explanatio n for this type of legislative behavior as well. Based on the partisan complexion of the Senate when compared to the Presidency, it does not appear that administrative court curbing is ideological in nature. In other words, one may think that a Republican Senate would be more likely to pass administrative court curbing legislation during times when there is a
133 Republican executive, and vice ver sa. However, as seen in Table 4 4, there is a general increase in this type of court curbing behavior, which is espe cially prevalent following the Republican Revolution in 1994. If administrative court curbing was ideological, then the Republican Senate would be hesitant to insulate a Democratic executive branch and its agencies rulings, which was not the case. Rather, the Senate appeared to be more willing to insulate the executive from the judiciary and hence delegate more power to the Presidency during this era. A likely reason for the lack of an ideological explanation lies primarily with the types of issues that the Senate chose to utilize administrative court curb i ng. As one can see from Table 4 4 most of these measures involved topics that were not socially divisive, and hence not as controversial as other measures. For example, unlike other court curbing measures involving flag burning or the pledge of allegiance, these administrative measures focused on issues ranging from immigration, banking, and bankruptcy, to agency disputes and crime. It is plausible that these particular issues did not raise concern amongst the Senators. 2 However, as previously indicated, there does appear to be an interesting ideological relationship between the Senate and the judicial branch during this era involving general court curbing. As noted in the introduction of this section, the re was an increasing trend of court curbing legislation occurring throughout this era, which is remarkable considering the Court too, grew much more conservative. One would 2 In support of this explanation, while not involving administrative court curbing, it should be noted that the Senate w as not opposed to giving power to an ideologically divergent executive during this time frame. For example, the Legislative Line Item Veto Act of 1995 was passed with a Republican Congress that gave the President power to veto portions of bills involving b udgetary matters. While the Supreme Court ultimately held that the act was unconstitutional in Clinton v. City of New York (1998), it is important for displaying the willingness of Congress to empower an ideologically divergent President during this era.
134 anticipate that less instances of court curbing would occur therefore as Congress and more particularly the Senate grew more conservative. After all, the prior eras appeared to suggest that liberals might attack a conservative Court (1925 1938), and conservatives would attack a liberal court (1939 1969) Yet, as displayed in Figure 4 2, the primary court curbers during this era were conservative Republicans. This proved to be the case even after the elections of 1994 which ushered in a new era in American politics as for the first time in decades Republicans took over both the House and the Senate. During this same time, the Court had five solidly conservative justices, and thus, there at first appeared to be the potential for an alliance between Congress and the Court. However, the exact opposite happened, as Congress, and more part icularly the Senate, continued its upward trend in court curbing. One partial explanation of this phenomenon of conservatives attacking conservatives lies with the rise in administrative court curbing mentioned above, as most Senate court curbing attempts (13 out of 23) following the Republican Revolution were administrative in nature. But, non administrative court curbing also increased during this era, leaving the administrative explanation partially incomplete. Another explanation lies primarily with t he changing party structure. As Southern Democrats migrated into the Republican Party during this era, the political parties grew more ideologically cohesive. The changes in party structure resulted in a more conservative Republican Party that pursued more conservative policies than prior Senates. Thus, it is likely that the Republicans that took over the House and Sen ate during the mid to late 1990 s were more conservative than the conservative members on the Supreme Court. Thus the observed court curbing of this period may represent
135 attempts by the much more conservative chambers of Congress to sanction a Court that it considered to be too moderate Rehnquist sim ply not conservative enough. Underlying Motivations, Results and Court Curbing Trends While the previous subsections have identified various court curbing trends over differ ent time periods, the motivations that underscore how the Senate as an institution approaches its relationship with the Supreme Court, and the judiciary as a whole, are untested. Some of these mo tivations were clear cut such as the Senate responding to particular decisions by the Court during the Warren Court era. However, there are ad ditional possible motivating factors behind why the Senate may attempt to sanction the Court. These motiv ating factors are presented in C hapter 3 and involve several different olve ideological institutional distance, polarization and divided government. As previously presented, it is believed that more court curbing measures would be reported out o f committee as more instances of judicial review is exercised, and as majority coalitions become splintered and dissensus becomes the norm. In addition, more court curbing measures are expected as the Court decides more controversial disputes. Ideology is also anticipated to play a role in the relationship betw een these branches, as greater ideological disparity between the institutions and polarization should result in more court curbing legislation. In order to falsifiably test whether these different mot ivating factors do in fact contribute to instances of Senate Court curbing, an original dataset that contains over
136 60,000 bills that were referred to the judiciary committee of either chamber was utilized. From this data, only Senate bills that were report ed out of committee that attempted to court curbing bills from 1925 2008, which are presented in Tables 4 1 through 4 3. The dependent variable therefore is a cou nt of the number of senate court curbing bills per year. While the data is count data, serial correlation was detected within residual diagnostics T o counter issues of temporal variance, the Cochrane Orcutt regression estimates were obtained for each of t he following possible motivating factor s, and are displayed on Table 4 5. The dependent variable and model chosen to examine the possible factors behind Senate court curbing legislation should enable a rejection of the null hypothesis that Senate court cur bing is unrelated to the above mentioned hypotheses. From the results reported on Table 4 5, I find some support for the hypothesis involving judicial review, as the results indicate that more court curbing legislation was in fact introduced in response t o judicial review by the Court. This result was significant at the .06 two tailed threshold, but does provide support for the notion that the Senate may in fact view the action of judicial review as an institutionally hostile act. Thus, as the Court decides to declare Senate bills unconstitutional, the Se nate responds by reporting more court curbing measures out of the judiciary committee. The response by the Senate is clearly a sanction intended to alter judicial behavior and encourage the Court to discontinue its current path of decision making. No suppo rt was found for the other judicial output variable. As the Court grew more fractured, and hence
137 began to dissent more over the twentieth century, the Senate did not ap pear to respond by reporting more court curbing legislation. The next set of parameter result s con trol for the extent that the Senate responds to the landmark policy agenda of the Court. First, wi th regard to criminal cases, an unanticipated trend was discovered. The result, while significant, revealed that landmark criminal precedents were accompanied by fewer court curbing attempts. This is somewhat surprising given the public controversy that met the Warren Court era precedents. However, the likely explanation is that this issue type represents a staple on the Supreme Court docket and a sp ecial domain of where the judicial branch is expected to maintain substantial authority over precedent. As long as the Court stuck with criminal justice disputes (even landmark ones) it was likely that the Senate perceived it to be carrying out duties that it should. Therefore, it seems that not all landmark policy making is seen as pernicious and criminal jurisprudence seems to be agree with the outcomes. Civil liberti es controversies however, represent the counter example. As expected, the parameter results yields a positive and robustly significant relationship. A s the Court hears and decides more controversial cases with in this particularly salient issue area, the Senate in turn advances more court curbing legislation Substantively, this is a cr itical finding because it shows that the Senate systematically monitors and In the case of civil liberties, the Court clearly shifted from conservative decisions that abided with positions held within the elected branches, to more progressive rulings that ran counter
138 to majoritarian interests. F he Warren Court era t he expansive approach es in civil rights and liberties generated substantial resistance in the Senate. C onservative senators responded by attempting to sanction the Court through various bills that attempted to either curb its powers d irectly construct does in fact matter, and may elicit an adverse institutional response if it is out of line with Congressional preferences. On the other hand, economic and institut ional power cases failed to achieve significance. This may be somewhat surprising since one might anticipate that there would be a relationship with economic cases given the New Deal conflict. Although the Court packing episode was a pronounced example of court curbing, it was relatively brief in duration and it seems that a more systemic relationship can be found for the sequence of landmarks in the area of civil liberties. This could also be the explanation for the lack of relationship involving instituti onal power cases as well. The Court intermittently delve d into this area and so a systematic relationship is harder to verify with the existing estimation strategy of looking at event counts. The final agenda variable involve s cases regarding original jur isdiction of the Supreme Court, which was positively associated with Senate court curbing. This indicates that cases that fall ing under the original jurisdiction of the court primarily inter state conflicts could draw a hostile response from the Senate Disputes involving state interests may have been a little more salient than we currently believe; at least within the Senate where the interests of senators are closely tied and the rights of small and large states continue to exist in tension.
139 The foll owing parameters control for party polarization and institutional distance. With regard to polarization, contrary to expectations, no relationship was found. This may be explained by the fact that when compared to the House, there are more rules in the Sen ate such as the filibuster that permit the members to be more individualist, and hence this inter branch relationship may be less affected by partisanship. While these results d id not obtain significance, the null finding is substantively important as it c an and will contrast with that of the House. As explained in C hapter 3, Representatives may be more affected by partisan politic s and therefore polarization could play more of a central role in that chamber than in the Senate. Looking ahead that will be th e case. Interestingly, significant and positive results were obtained for the institutional distance variable. This result indicates that as the distance between the institutions grow further apart, more Senate court curbing bills are reported out of the judi ciary committee. This clearly shows that when it involves court curbing legislation, the Senate as an institution does not respond to the existence of party polarization but it is concerned with the potential for ideology conflicts between branches Referring back to the principal agent model, the presence of goal conflict is associated with significantly more sanctioning activity. This finding of course, is critically important as it is a robust confirmation of the theoretical framework, but it make s intuitive sense. Sanctions such as those targeting specific Supreme Court decisions are a function of the two institutions having conflicting policy goals throughout this lengthy time period. Conclusions on Senate Court Curbing The previous sections pre sented both a qualitative and quantitative account for why the Senate engages in court curbing behavior. The conclusions drawn from b oth of these sections reinforce each other. F irst, ideology represents a primary motivating
140 factor behind Senate court curb ing. During the first two eras under analysis, court curbing appears ideologically motivated, as liberals were curbing a conservative Court during the latter half of the first era (1925 1938), while conservatives curbed an increasingly liberal Warren Cou rt during the second era (1939 1969). The third era (1970 2008), witnessed a new phenomenon, in which conservative Senators attacked an increasingly conservative Court. While several explanations were offered for the possible reasons for this, it is in teresting to note that the Court may have been attacked for not being conservative enough, and therefore there were still ideological motivations behind the court curbing attempts. The quan titative evidence also suggests that ideology matters between the i nstitutions. More specifically, as the institutions of the Senate and the Court grew ideologically further apart, court curbing attempts increased. This suggest s that the Senate does mo nitor the Court and its rulings. W hen the Court and its rulings deviate from the preferences of the Senate, it responds by reporting more court curbing legislation out of committee. Sanctions therefore are more prevalent as there is greater ideological disparity between the institutions. Another important finding that is rein forced by both the qualitative and quantitative data is that the direction of the landmark policy doctrine matters as well. As displayed in the first several sections, as the Court upheld Congressional regulatory efforts and signaled a shift in its attention away from economic cases, the Senate stood down and did not report out court curbing legisla tion for over a decade. Later, as the Court began to turn its focus toward expansionary civil rights and liberties precedents in the Wa rren Court era, th e Senate again respond ed by reporting out more
141 such measures. A s the Court began to adopt more expansive constitutional interpretations involving civil liberties, the more conservative Senate responded by attempting to reign in the Court by sanctioning it. All liberties cases were not equal however, as criminal cases yielded the opposite result. This lack of sanction activity for what might be construed as equally controversial outcomes could be related to a view that criminal justice is an innate domain of the judiciary and is a core function of the Court (w hether the Senate is happy in the end result or not). Finally, the results indicated that from a separation of powers perspective, Senate court curbing is often a response to judicial review from the Co urt. As the Court utilizes its check against the legi slative branch, the Senate frequently responds by threatening the Court with sanctions. There clearly is interaction betwe en the branches as highlighted by those periods of heightened tension that occur during the use of the fashion, actions fr om one branch are often met by equal responses from the other. While these results do not deal with the issue of whether the Court in f act responds to these threatened sanctions the Senate does systematically challenge the judiciary and attempt to alter its behavior Senate Court Rewarding Legislation over Time Similar to the overall trend involving Senate court curbing legisla tion, Sen ate attempts to possibly influence the judicial branch through incentives have also varied over time. Recall that these court rewarding attempts are efforts by Congress to incentivize or reward the federal judiciary for its behavior, and include items such as salary increases, retirement benefits, and increasing courts, judgeships, and terms in which hear ings are held. Figure 4 3, which displays the amount of Senate court
142 rewarding bills reported out of the judiciary committee from 1925 2008, reflects a g eneral decline in the introduction of such legislation over time. This is expected, as growing use of Senate court curbing over time implies that the inter branch relationship took on a more negative aspect overall. While there is a general declining trend there are still several distinct patterns that are noticeable with regard to court rewarding legislation. Thus, similar to the incidents of Senate court curbing, this section and subsequent subsections will examine the trends of Senate court rewarding le gislation by historical era. Also similar to the Senate court curbing section, there are several trends that are identifiable when one examines who is sponsoring such legislation. Since opposite trends are displayed between court curbing and court rewardi ng legislation, one would anticipate that liberals would b e more prone to reward the judiciary since conservatives were more prone to attack it through court curbing legislation during certain eras. Interest ingly, as displayed in Figure 4 4, there appears to be certain time frames when certain parties are utilizing court rewarding more than the other. Some of these ideological trends may simply indicate a response by Senators of both parties to create new courts that were more sympathetic to their issues. Regardless of the precise reasons, it should be noted that some periods did witness more liberal and conservative members rewarding the court, which will be explored more in the upcoming subsections. Initial Conservatism, and the Switch in Time: 1925 19 38 The beginning of this era experienced an alliance between a conservative court and conservative Congress. Hence it is no surprise that in 1925, the Senate not only agreed to give the Supreme Court control over its appellate docket, bu t also continued
143 to reward the C ourt since the institutions were ideologically ali gned. As can be seen on Table 4 6, which provides all of the court rewarding bills that were reported out of the judiciary committee from 1925 1938, in 1925 and 1926, the Senate reported ten and eleven pieces respectively of court rewarding legislation out of committee. These bills were mostly administrative in nature, meaning that they aimed to provide more districts or courts to ease the administrative burden of the federal judiciary. Howeve r, bills in 1926 and 1928 also were reported out that would positively affect the salary of federal judges. Yet, as the economy worsened, and Congress grew more liberal, the Court continued to rule conservatively. In response, the Senate rewarded the court less up until 1935. In fact, there was only one piece of court rewarding legislation reported out of the Senate in 1934. In 1935, which was approximately the time when Congress was threatening to add new members to the Court, the Senate began reporting ou t new court rewarding measures in larger numbers. What is particularly interesting is that in 1935, sixteen court rewarding measures were reported out of committee. The reason why this is noteworthy is that these measures were likely reported by Senators w ho were try ing to create more courts districts and judgeships to gain new appointment opportunities that would leaven a bench largely stocked with Republican appointees. In other words, these likely were attempts by Senators to create new liberal distric ts in previous ly conservative areas that would fa Since the President and Senate were ideologically aligned against the Supreme Court, the expansion of the bench represented an additional strategy versus Court packing on t he high bench. 3 3 It should be noted that expanding the lower federal judicial system by adding judges, circuits and terms is considered court rewarding as it alleviates the administrative burden on the judicial system. However,
144 The data supports this argument, as there was an ideological shift in the sponsors of court rewarding legislatio n over this era. As displayed in Table 4 7, which presents the number of sponsors of each court rewarding measure per year by p arty, initially more Republican Senators sponsored legislation creating more courts during the beginning of thi s era. This is court rewarding in the traditional sense, as the Republican senators were creating more conservative judicial districts which comp ort with the conservative path of current decision making by the Court. In addition, the creation of these lower federal courts may not necessarily have been motivated by ideology during this time, as many were meant to provide relief for the growing numbe r of cases resulting from the industrialization of the United States. However, after 1931, a transition in the ideological complexion of the sponsors of court rewarding legislation takes place Starting in 1932 through 1938, a total forty six pieces of co urt rewarding legislation were pushed out of committee Thirty eight of these measures were introduced to add new judges hips courts or terms for additional hearings in particular jurisdictions. Only two of these attempts were made by Republicans. Thus, it is obvious that Democrats were using court rewarding legislation as a tool to expand the federal judiciary by creating new courts that would rule in a manner that c oincided with their views. The political preferences of these new judges would ideologicall y conflict with a conservative Supreme Court that was dated and holding onto laissez faire economic decisions stifled many New Deal programs. the Court packing plan in which Congress p roposed to add justices on the Supreme Court is considered court curbing as it was an obvious effort targeting the Court to alter its behavior. In other words, while the bills proposing to add Supreme Court justices would expand the bench, the purpose was obviously to attack the Court and was not aimed at resolving administrative concerns. After all, the Judiciary Act of 1925 recently had passed a few years before the Court packing plan, and as reviewed in Chapter 2, had the effect of easing the administrat ive burden on the Court.
145 Therefore, it is important to note that while adding judges and courts may typically be viewed as rewarding the ju diciary, it may also be that a political party engages in this behavior to in a sense stack the deck against a Supreme Court that is ideologically at o dds with legislative majorities As reviewed in the court curbing section of this chapter, the threat of Court packing altered the Supreme Court however, the creation of new judgeships acted to put new people in position to either stave off compliance with the high Court or advance cases with more favorab le fact sets that would end in more favorable precedents. Another perspective that should be noted is t hat these expansionary bills were also a part of the patro nage process of this era From the first Congress, Senators have viewed appointment opportunit ies as valuable constituency benefits, and judicial appointments with life tenure are quite valuable in this light. The creation of new courts would grant federal resources to the Senato s may simply be attempting to ga rner more o f these resources Overall, whether one views the creation of these lower level courts as easing the administrative concerns of the judiciary or as an ideological tool used by one political or as a function of the patronage process, the pattern is one of growth throughout this period. Clearly there was an increase in the usage of this form of legislation during the same time when the two institutions of the Senate and the Court were at an im passe. World War, Post War Period, and the Warren Court Era: 1939 1969 During this era, court rewarding activity appears to pick up where the previous one left off. As indicated on Table 4 8, the initial decades of this time period witnessed
146 the same pa tt ern as the end of the prior era as there were still continued efforts to expand the lower levels of the federal judiciary, which were primarily made by Democratic Senators. While these attempts at expansion continued throughout this era, it is noteworth y that from 1939 1956, a steady decline occurred. For example, in 1939, there were eleven such measures reported out of committee, which was reduced to nine in 1941, six in 1943, and three in 1944 and 1945. While in 1949 there were six such measures r epo rted out, this amount declined to four in 1950, one in 1951, two in 1953, four in 1954, and one in 1955. As seen in last portion of the prior political era under analysis, the primary sponsors of this type of legislation were once again Democrats, who spon sored twenty eight of the thirty one measures that were reported out of the judiciary committee. However, in 1957, there was an explosion of administrative court rewarding bill s that added courts and judgeships Specifically, there was an all time high of nineteen measures that were reported out of the Senate judiciary committee that year. What is particularly noteworthy is that twelve of the nineteen measures were sponsored by Republicans, and two other measures were sponsored by conservative Democrats. T his is remarkable considering that the Senate that year had a majority of Democratic members, and since expanding the judiciary has largely been a Democratic enterprise, one would expect the opposite trend of Democrats using this form of legislation. A po ssibl e explanation for the growth of adminis trative court rewarding by conservatives is that several conservative members entrenched in the Democratic Party joined forces with the Republicans as noted above and in effect created an alliance with the Republ ican President. Thus, the creation of these new courts may simply be a
147 response by the conservative alliance between Senators and the President against the liberal rulings of the Warren Court. This was the oppos ite of the preceding era, which witnessed a u niformly liberal Congress and President positioned against a conservative Supreme Court. This pattern also appears to confirm the suggestions presented in the last era regarding the possible motivations of the Senate in expanding the lower federal courts The Supreme Court had drastically altered its judicial behavior with the ascension of Justice Warren as chief, which was seen in one of its initial opinions, Brown v. Board of Education (1954). Following Brown T he Warren Court continued to hand down rulings that conflicted with c onservative preferences. As previously discussed in the Senate Court curbing section, 1957 was the year in which the Court decided Watkins v. United State s (1957), in which the Court pl aced limitations as to the scope of Congressional investigations involving alleged communist members. Due to the outrage voiced in Congress and the public, the Court cut back on its ruling and later reversed course in Barenblatt v. United States (1959). I n addition, the Court decided Yates v. United States (1957) that provoked similar controversy. In Yates, the Court overturned convictions of members of the Communist party who were accused of violating the Smith Act by allegedly advocating the overthrow of the United States government. In interpreting the Smith Act, the Court distinguished between teaching and advocating the overthrow of the government in principle versus actually encouraging and eliciting concrete action. Conservatives respond ed to these a nd other more progr essive decisions by the Court and introduced more administrative court rewarding legislation. The introduction and reporting out more
148 of this form of legislation appears to support the possibility that the Senate may attempt to control t he judicial branch through rewards. However, unlike the expected trend of utilizing this form of legislation to actually reward the Court for complying with its preferences, the Senate may utilize court rewarding in response to a hostile Court. In reality, this activity appears to be a form of court curbing by other means and an attempt to stack the lower federal judiciary against a Court that conflicts with the Senate. The remaining years of this era were relatively unspectacular, as the lev els of court rewarding remained stable. The types of bills being reported out of committee continued to be administrative in nature, with the exception of two bills, introduced in 1963 and 1969, which would increase the salaries of federal judiciary members. Unlike the trend in 1957 however, most of this legislation was being introduced by liberal Democrats. Thus, the few expansionary bills aimed at creating more courts/terms/judges during these latter years of this era appe ar to follow a trend of sincerely rewarding th e Court. In other words, unlike the trend in 1957, in which the conservatives may have been utilizing this form of legislation to stack the deck against a hostile Court, the Democrats during the following decade appear to have been using it as a true rewar d for the progressive direction of the Warren Court These administrative court rewarding attempts however we re intermittent and scattered over the decade as opposed to the conservative attempts, which appear to be mot ivated by the specific decision inter vals of the Court. Finally, it should be noted that there may be alternative explanations for these attempts. Similar to the prior era, these measures could lack an ideological explanation, and rather could be the result of patronage politics. Additionall y, it is possible that the
149 Court was experiencing administrative concerns with increasing backlog in particular judicial districts, and that these measures were genuine efforts to ease the growing case burden on the f ederal judiciary. It is likely that eac h of these explanations played a egardless of the precise reason the patterns identified above are noteworthy, as Democrats typically utilized this form of legislation, but halfway thro ugh this era, conservatives engaged in the same practice. Increasing Inter branch Dispute From Burger to Roberts: 1970 2008 Like the court curbing activity of this era, this is a period of considerable inter branch conflict. Bet ween the impoundment cr isis, Watergate, and other salient contests, such as Iran Contra, battles between the executive and legislative branches abound. The Court during this time also experienced a nother shift toward the right as Burger and Rehnquist became chief justice and R eagan and Bush nominees took their seats on the lower federal bench. While the judiciary shifted, there are several trends noticeable by decade involving c ourt rewarding legislation. Fir st, during the 1970 s, a continuation in the usage of administrative court rewarding occurred More particularly, and as displayed on Table 4 9 the instances of administrative court rewarding increased from one attempt in 1970, two in 1971, one in 1973 and 1974, and then jumped to nine in 1975. Six more of these types of bills were introduced in 1977, and four more in 1979. All of these bills were sponsored by Democrats, which suggests differing reasons behind the possible motivation regarding the introduction of this type of legislation. Specifically during the first par t of this decade, the Presidency was controlled by Republicans, the Senate by Democrats, and the Supreme Court by a majority of
150 conservative members. The nine attempts to add judges/courts/terms in 1975 may once again be an attempt by Democrats to stack th e deck against an increa singly conservative Court. Yet this seem s an unlikely explan ation, given that the President was Republican and new judgeship s would be nominated with a conservative philosophy. I t is possible however, that in the context of the rec ent Watergate scandal, President Ford and members of Congress were seeking a return to normalcy and because these new seats would be valuable to senators, this may have been a way to rebuild broken bridges. The President would have to ob tain Senate consent for any of these nominees, and the norm consult ing with the home state Senators of the judicial nominee remained strong in this era This likely made bench expansion a welcome refuge after past showdowns with Nixon. The attempts in 1977 and 1979 also wer e made by Democrats. However, the executive branch w as now also headed by Carter and ideological conflict was at least initially minimal. belief s toward conservatism, no real inter branc h dispute s resulted betwe en the branches Thus, one plausible explanation that was raised in prior eras is that this form of court rewarding may be an attempt by the ideologically aligned branches of government to entrench judicial nominees with similar be liefs into the lower federal court. A s there was no real tension between the Court and other branches at this time, the court rewarding legislation that was being reported out of committee appears to be legitimate attempts to add new districts to ease the administrative burdens on the Court. The 1980 s ushered in a more conservative era for both the Presidency under Reagan, and a newly elected Republican majority in the Senate. With a conservative
151 Court, one may believe that the Republicans would attempt t o add more judicial seats or s attempts by Democrats. Yet, this did not occur. The amount of administrative court rewarding attempts actually decreas ed during this era of party polarization In addition, the ag gregate amount of court rewarding legislation fell with only twenty one such measures being reported out of committee while the Republicans were in the Senate from 1981 1987. These measures mainly involved studies that sought to improve judicial efficie ncy, or increase staff and materials for the federal judiciary. This form of legislation does not appear to be attempts to alter the ideological characteristics of judicial policy making outcomes. T to power new majority coalitions of cons ervative Republicans within the House and the Senate. With Clinton as President and visceral branch contests on the budget that would shut down the government, an elected branch alliance was impossible. The Court in fact had shi fted much more conservative under the leader ship of Chief Justice Rehnquist, and the House and Senate were ideologically aligned with this movement. More court rewarding legislation could have taken place, but the need to insulate the lower courts from a s hirking Supreme Court was not really evident at this time. As indicated on Figure 4 3, and as previously mentioned, there is a continuation in the decline of court rewarding legislation being reported out of the Senate judiciary committee. While the gener al trend of court rewarding legislation remained relatively steady during this era, it remained very low compared to the other eras. This may be explained wh en one recalls that this era is defined by conservatives attacking conservatives. Thus, since conse rvatives were in control, and continued to remain in
152 control until recently, the Senate woul d be unlikely to also reward a Court and the entire judicial branch during the same era as it is continued to attack it. Unlike the first two eras, the Senate is no longer creating new courts in an attempt to add more conservative judges to the bench. After all, the Supreme Court is already conservative, although apparently not conservative enough since they were being attacked by fellow conservatives. With the incr easing partisan nature of politics found during this era, the decline in court rewarding legislation certainly could be explained by growing measures of polarity and realized distance between the two parties. C onservative s were obviously attacking the C our t with more court curbing legislation, which may have been done to garner support from their constituency. Should Senators find it electorally advantageous to attack the Court, then it also makes sense that it would not be seeking to reward the Court or th e federal judiciary in general. Thus, the decline in court rewarding, and its coinciding with the increase in polarization, may all be related to Senators adhering to constituent preferences. Underlying Motivations, Results and Court Rewarding Trends Two potential motivations have been identified in the previous sections regarding the instances of court rewarding behavior. First, it has been suggested that court rewarding legislation may be reported out as a true reward toward the judiciary as renders deci sions that are in alignment with Senate preferences. Alternatively, it is plausible that the Court has been ruling against Senate preferences, and the Senate uses this form of legislation to create additional lower courts that would interpret the law more favorable to their views. This section will falsifiably evaluate a range of motivating factors, including judicial re view, dissensus on the Court, landmark policy production
153 polarization, and institutional distance. While these are the same factors analy zed in the court curbing section, it is expected that opposite trends will be discovered involving court rewarding legislation. In order to adequately examine these possible motivating factors, the same original dataset was used which also identified ever y court rewarding bill referred to the Judiciary C ommittee and subsequently re ported out between 1925 and 2008. This resulted in three hundred and sixty one pieces of court rewarding legislation. T he analysis will be segregated into three separate componen ts. The first will examine how these possible motivating factors affect all instances of court rewarding legislation. The second analysis will be limited to administrative court rewarding bills that expan ded the judiciary. The third analysis will examine t he more traditional or non administrative court rewarding measures that include the remaining bills that consider items such as salary increases. The analysis is segregated since the qualitative section revealed the possibility that court rewarding legisl ation that expanded the judiciary may be used in a way that conflicts with judicial preferences. In other words, it is possible that Senators engage in this behavior either to reward themselves through the patronage process, or to create more courts to ren der rulings more in align with its preferences versus that of the Supreme Court. Thus, the administrative court rewarding bills may not ne cessarily be rewarding the judiciary in the traditional sense, and hence there may be different motivations behind the se particular types of bench expansion bills. The first analysis involves all instances of Senate court rewarding legislation, and utilized data that is estimated using Cochrane Orcutt regression since serial correlation
154 was detected. The results are repor ted on Table 4 10. First, it should be noted that unlike court curbing legislation, no relationships are found for judicial review, changes in branch ideological distances or divided government. However, t he parame ter controlling for the level of dissent on the Court is both negative and significant. Consistent with the hypothesis, the Senate is less likely to generate and move forward court rewarding legislation in the context of internal conflict on the Court. Th is in turn indicates that the Senate is more likely to bestow resources when the Court is united. 4 Perhaps the most substantive conclusion regarding court rewarding involves polarization within the Senate The results reveal that a s party polarization wi thin the Senate increases, fewer court rewarding bills are reported out of committee. This is important as growing disparities between the parties did not affect the tendency to move court curbing sanctions. It does, however, affect a decline in support fo r the granting of valuable resources to the judiciary. It seems the power of the purse is alive with respect to polarization for rewards The alternative explanation is that in certain time frames it is more electorally advantageous to attack the Supreme C ourt with sanctions for rendering unpopular judicial decisions. Changes in court rewarding, on the other hand, may be ingrained within the traditional appropriation process where polarization has a more steady influence. 4 It is possible that there is an electoral component that may explain the significance of this variable as well. As the Court grows more divided and as a result issues more dissenting opinions, it is likely that it is deciding mo re controversial and divisive cases, such as those involving civil rights and liberties. These controversial cases likely not only divide the Court, but also the Senate. Thus, the Senate may be less likely to reward the judiciary during times it is not uni ted, since it likely disagrees with the current path of judicial decision making.
155 In an attempt to better parse som e of the variance in Senate court rewarding behavior, the dependent variable was divided between those administrative attempts that expanded the judiciary, and all the remaining forms of legislation that would be deemed judicial rewards. In conducting the s e analyses, the same independent variables are examined As no serial correlation was detected for the administrative court rewarding model negative bi nomial regression is used However, some serial correlation was detected for non administrative court re warding, and thus the data was estimated using Cochrane Orcutt regression. The results regarding administrative court rewarding bills are displayed on Fi gure 4 11 and those for the non admi nistrative measures on Figure 4 12. As one will note, the adminis trative measures reveal the same results as the overall court rewarding bills, with both the unanimity of the Court and party polarization bein g negative and significant and in the expected direction. This reveals similar motivations for senators expanding the federal judiciary as was presented above with regard to overall instances of court rewarding behavior. Likewise, the results for non administrative court rewarding measures were similar to the previous two models, except that the dissent rate failed t o achieve significance. However, polarization was still significant, once again showing that partisanship plays an integral part to non administrative rewards. Conclusions on Senate Court Rewarding The above analyses revealed distinct patterns in the Sena curbing sanctions versus its use of rewards First, as seen in the qualitative section, and also noted in court curbing attempts, court rewarding does not consistently appear to be ideologically motivated as the Senate does not appear to base its decision on rewarding the judiciary on whether the Court as an institution is ideologically aligned
156 with its preferences While the first era initially displayed conservative attempts to reward a conservative court, the pattern changed following 1935, with liberals rewarding the conservative Court. As previously explained, this was likely caused by efforts of a liberal Senate and liberal President to expand the judiciary with new members that had similar ideological beliefs. Likewise, patronage po litics also was a motivating factor, with the Senate enabling the President to fill these newly created seats in particular states. For the most part, court rewarding continued to be a Democratic effort, as Democrats largely used this form of legislation t o expand the judiciary during the second era. However, a similar phenomenon as encountered during the first era was observed again, as conservative members attempted to expand the judiciary against an s court rewarding attempts shifted from expanding the federal judiciary, to efforts that would be viewed as more traditional rewards, such as salary increases and studies that aim to improve the efficiency of the Court. The reasons for this shift may also be ideologically motivated, as the conservative Senate, while clearly having the opportunity to expand the judiciary since there was a conservative executive during much of the era, chose not to, as the Court was also conservative. Apparently conservatives choose not to use administrative court rewarding to expand the federal judiciary as an ideological weapon to the same extent that liberals have in the past. It is also possible that the prior eras of expansion had reached its peak, and that the judiciary was running efficiently during the latter portion of this era. With regard to the quantitative results, court rewarding appears to be related both the unanimity of the Court and party polarization. Once again, this finding can be
157 explained by control, as the Senate may find it easier to reward a united Court in an attempt to have it follow its preferences. In addition, this result indicates the possibility that there is an electoral component to these measures, since a more divided Court is being rewarded less. As Senators seek reelection, the more divided Court may mean that it is deciding controversial disputes, and hence may divide the public. Thus, the Senate may not pursue rewards during times of public division. In all court rewarding models, the res ults also revealed a negative and significant relationship for polarization, indicating that as there is more polarization, less court rewarding legislation is reported out of a Senate committee. As previously discussed, a likely explanation is that the Se nate introduces this type of legislation when it is electorally advantageous to do so. However, during the most recent and highly polarized time frames, it appears to be more advantageous to attack the Court, rather than reward it, which explains the decli ning co urt rewarding trend Conclusion Overall, the relationship between the Senate and the judiciary has been a complex one that has changed over time. This complexity can be seen in the patterns of Senate court curbing and court rewarding behavior. Fir st, with regard to court curbing, it appears that many attempts by the Senate were based on preserving the institutional legitimacy of Congress. In other words, the Senate often responded to specific attacks by the Court and its utilization of judicial rev iew This does not mean that the Senate did attempted to sanction the Court in response to the increasing rulings involving civil rights and liberties disputes.
158 Fu rthermore, perhaps most interesting is who was doing the court curbing. While it is not surprising that liberals often attacked conservative courts and vice versa, the results indicated that in recent decades, conservative Senators are attacking a conserva tive Court. This is counterintuitive, and suggests that perhaps the Senate does not view the Court as being conservative enough. Finally, it should be noted that the battle with the judicial branch does not just involve court curbing legislation. Rather, as seen in this chapter, the Senate also attempts to control the judiciary through court rewarding legislation as well. Most of these attempts typically focus on administrative concerns which involve creating more courts to ease the administrative burden o n the judicial system. However, an interesting point is that often conservatives are rewarding a liberal court and vice versa. While this is counterintuitive, it appears that this may result as Senators are trying to expand a federal judiciary in order for the new lower court judges to decide or interpret cases in a manner that is consistent with their views. Thus, following an adverse decision by the that will interpret
159 Figure 4 1 Senate c ourt c urbing b ills r eported o ut of c ommittee by y ear, 1925 2010 Figure 4 2. DW n ominate v alue of s enators s ponsor ing c ourt c urbing l e gislation and the m ean DW n ominate v alue of the m ajority p arty in the Senate
160 Figure 4 3. Senate c ourt r eward ing b ills r eported o ut of c ommittee by y ear, 1925 2010 Figure 4 4. Mean DW n ominate v alue of s enators s ponsoring c ourt r ewarding l egislation an d the m ean DW n ominate v alue of the m ajority p arty in the Senate
161 Table 4 1 Senate c ourt c urbing b ills r eported out of c ommittee, 1925 1938 Bill t ype B ill number Y ear introduced Court curbing t ype Issue S 4331 1926 Judicial Review Crime S 726 192 7 Limiting Time Frame for Judicial Decision S 1747 1927 Limiting Time Frame for Judicial Decision S 3151 1928 Jurisdiction Evidence / Procedure S 4357 1930 Jurisdiction Evidence / Procedure S 935 1931 Jurisdiction Labor S 939 1931 Jurisdiction Evidence / Procedure S 3243 1932 Judicial Review Federalism S 339 1933 Case Economic S 752 1933 Judicial Review Administrative S 1381 1935 Judicial Review Habeas Corpus S 1626 1935 Case Economic S 1724 1935 Abolishes District SJR 144 1937 Case Child Labor S 1392 1937 Adds Justice to USSC S 1437 1937 Judicial Review Administrative S 1551 1937 Jurisdiction S 3232 1938 Age Limits Force Retirement S 4050 1938 Abolishes District Table 4 2 Senate c ourt c urbing b ills r eported out of c ommittee, 1939 1969 B ill type B ill number Y ear introduced Court curbing t ype Issue S 1988 1948 Case Public Land S 259 1949 Abolishes District S 1832 1949 Judicial Review Designation S 28 1951 Judicial Review National Defense S 28 1953 Judi cial Review National Defense SJR 44 1953 Age Limits Force Retirement S 1512 1955 Abolishes District S 2042 1955 Jurisdiction Pensions S 2646 1957 Jurisdiction Subcommittees of Congress SJR 103 1965 Case Apportionment S 1620 1965 Abolishes D istrict S 2273 1965 Jurisdiction S 3246 1969 Judicial Review Crime
162 Table 4 3 Senate c ourt c urbing b ills r eported out of c ommittee, 1970 2008 B ill type B ill number Y ear introduced Court curbing t ype Issue S 1061 1973 Judicial Procedure / Disq ualification S 1651 1977 Case Civil Rights S 262 1979 Judicial Review Agency S 299 1979 Judicial Review Agency S 450 1979 Case School Prayer S 1477 1979 Judicial Review Administrative SJR 110 1981 Case Abortion S 1080 1981 Judicial Revie w Agency S 1630 1981 Jurisdiction Crime S 1940 1981 Judicial Review Crime S 2222 1982 Judicial Review Immigration SJR 3 1983 Case Abortion SJR 73 1983 Case School Prayer SJR 212 1984 Case School Prayer S 529 1983 Judicial Review Imm igration S 1059 1983 Case School Prayer SJR 2 1985 Case School Prayer S 51 1985 Judicial Review Environment S 1200 1985 Judicial Review Immigration S 1504 1987 Judicial Review Agency S 1516 1987 Judicial Review Environment S 1630 1987 Ju dicial Review Bankruptcy SJR 180 1989 Case Flag Burning S 303 1989 Judicial Review Agency S 971 1989 Judicial Review Arbitration S 1338 1989 Case Flag Burning S 1400 1989 Jurisdiction Tort Reform S 3194 1990 Judicial Review Banking S 6 40 1991 Judicial Review Tort Reform S 2652 1992 Judicial Review Health Care S 578 1993 Case Religious Freedom S 687 1993 Jurisdiction Tort Reform S 2297 1994 Judicial Review Anti Trust S 2467 1994 Judicial Review International Trade S 1 1995 Judicial Review Unfunded Mandates SJR 31 1995 Case Flag Burning S 219 1995 Judicial Review Agency S 343 1995 Judicial Review Agency S 942 1995 Judicial Review Agency
163 Table 4 3 Continued B ill type B ill number Y ear introduced Court cur bing t ype Issue S 1664 1996 Judicial Review Immigration S 1665 1996 Judicial Review Immigration S 10 1997 Judicial Review Crime SJR 40 1998 Case Flag Burning S 610 1997 Judicial Review Terrorism S 1504 1997 Judicial Review Immigration S 1892 1998 Other Case S 2073 1998 Judicial Review Crime S 2151 1998 Case Crime S 2536 1998 Judicial Review Crime SJR 14 1999 Case Flag Burning S 1754 1999 Judicial Review Immigration S 2713 2002 Judicial Review Judicial Maintenance SJ R 4 2003 Case Flag Burning S 1735 2003 Judicial Review Crime S 852 2005 Judicial Review Tort Reform S 185 2007 Judicial Review Habeas Corpus S 2052 2007 Judicial Review Habeas Corpus
164 Table 4 4 Senate a dministrative c ou rt c urbing b ills r eported out of c ommittee, 1925 2008 B ill type B ill number Y ear introduced Court curbing t ype Issue S 752 1933 Judicial Review Administrative S 1832 1949 Judicial Review Designation S 3246 1969 Judicial Review Crime S 262 1 979 Judicial Review Agency S 1940 1981 Judicial Review Crime S 2222 1982 Judicial Review Immigration S 529 1983 Judicial Review Immigration S 1200 1985 Judicial Review Immigration S 1516 1987 Judicial Review Environment S 1630 1987 Judici al Review Bankruptcy S 303 1989 Judicial Review Agency S 971 1989 Judicial Review Arbitration S 3194 1990 Judicial Review Banking S 2652 1992 Judicial Review Health Care S 2297 1994 Judicial Review Anti Trust S 2467 1994 Judicial Review International Trade S 219 1995 Judicial Review Agency S 343 1995 Judicial Review Agency S 942 1995 Judicial Review Agency S 1664 1996 Judicial Review Immigration S 1665 1996 Judicial Review Immigration S 10 1997 Judicial Review Crime S 610 1997 Judicial Review Terrorism S 1504 1997 Judicial Review Immigration S 2073 1998 Judicial Review Crime S 2536 1998 Judicial Review Crime S 1754 1999 Judicial Review Immigration S 1735 2003 Judicial Review Crime S 852 2005 Judicial Review Tort Reform
165 Table 4 5 Cochrane Orcutt r egression e stimation r esults for Senate c ourt c urbing b ills r eported o ut of c ommittee by y ear, 1925 2008 Variable Coefficient (Standard Error) P Value Judicial Review .12 (.06) .06 Supreme Co urt Dissent Rate .00 (.01) .68 Criminal Landmarks .33 (.10) .00 Civil Liberties Landmarks .31 (.07) .00 Economic Landmarks .00 (.11) .98 Institutional Power Landmarks .11 (.18) .55 Original Jurisdiction Landmarks 1.02 (.36) .01 Party Polarizati on .87 (1.09) .43 Ideological Institutional Distance .02 (.01) .01 Divided Government .22 (.26) .38 Constant .12 (.61) .85 N 81 Residual Test .30 (.11) .01 Durbin Watson (original) (Transformed) 2.58 1.84
166 Table 4 6 Senate c ourt r ewardin g b ills r eported out of c ommittee, 1925 1938 Bill type Bill number Year introduced Court rewarding t ype Issue S 4056 1925 Adding Judges/Courts/Terms S 4352 1925 Adding Judges/Courts/Terms S 1645 1925 Adding Judges/Courts/Terms S 1962 1925 Adding Judges/Courts/Terms S 4059 1925 Adding Judges/Courts/Terms S 227 1925 Adding Judges/Courts/Terms S 475 1925 Adding Judges/Courts/Terms S 1490 1925 Adding Judges/Courts/Terms S 1642 1925 Adding Judges/Courts/Terms S 1043 1925 Staff/Materials S 2858 1 926 Salary/Miscellaneous Expenses S 2762 1926 Adding Judges/Courts/Terms S 4328 1926 Adding Judges/Courts/Terms S 4711 1926 Adding Judges/Courts/Terms S 4840 1926 Adding Judges/Courts/Terms S 2464 1926 Adding Judges/Courts/Terms S 2763 1926 Adding Ju dges/Courts/Terms S 2849 1926 Adding Judges/Courts/Terms S 3028 1926 Adding Judges/Courts/Terms S 3418 1926 Adding Judges/Courts/Terms S 4056 1926 Adding Judges/Courts/Terms S 5352 1927 Adding Judges/Courts/Terms S 773 1927 Adding Judges/Courts/Terms S 1275 1927 Adding Judges/Courts/Terms S 1965 1927 Adding Judges/Courts/Terms S 1976 1927 Adding Judges/Courts/Terms SJR 45 1927 Staff/Materials S 2206 1928 Salary/Miscellaneous Expenses S 3864 1928 Adding Judges/Courts/Terms S 3938 1928 Adding Jud ges/Courts/Terms S 4127 1928 Adding Judges/Courts/Terms S 2752 1928 Adding Judges/Courts/Terms S 3590 1928 Adding Judges/Courts/Terms S 3947 1928 Adding Judges/Courts/Terms S 5193 1929 Adding Judges/Courts/Terms S 5515 1929 Adding Judges/Courts/Terms S 1317 1929 Adding Judges/Courts/Terms S 2358 1929 Adding Judges/Courts/Terms S 1792 1929 Adding Judges/Courts/Terms S 1906 1929 Adding Judges/Courts/Term s
167 Table 4 6. Continued Bill type Bill number Year introduced Court rewarding t ype Issue S 32 29 1930 Adding Judges/Courts/Terms S 3493 1930 Adding Judges/Courts/Terms S 3939 1930 Adding Judges/Courts/Terms S 5025 1930 Adding Judges/Courts/Terms S 3064 1930 Adding Judges/Courts/Terms S 3371 1930 Adding Judges/Courts/Terms S 3614 1930 Adding J udges/Courts/Terms S 1335 1931 Adding Judges/Courts/Terms S 2232 1931 Adding Judges/Courts/Terms S 2447 1932 Adding Judges/Courts/Terms S 3145 1932 Adding Judges/Courts/Terms S 1650 1933 Studies that improve judicial efficiency S 1777 1933 Adding Jud ges/Courts/Terms S 687 1933 Adding Judges/Courts/Terms S 813 1933 Adding Judges/Courts/Terms S 3524 1934 Adding Judges/Courts/Terms S 479 1935 Studies that improve judicial efficiency S 1309 1935 Studies that improve judicial efficiency S 481 1935 St udies that improve judicial efficiency S 317 1935 Adding Judges/Courts/Terms S 477 1935 Adding Judges/Courts/Terms S 2513 1935 Adding Judges/Courts/Terms S 3149 1935 Adding Judges/Courts/Terms S 3389 1935 Adding Judges/Courts/Terms S 3414 1935 Adding Judges/Courts/Terms S 2075 1935 Adding Judges/Courts/Terms S 2137 1935 Adding Judges/Courts/Terms S 2456 1935 Adding Judges/Courts/Terms S 3179 1935 Adding Judges/Courts/Terms S 3344 1935 Adding Judges/Courts/Terms S 3434 1935 Adding Judges/Courts/T erms S 2643 1935 Staff/Materials S 4530 1936 Salary/Miscellaneous Expenses S 4352 1936 Adding Judges/Courts/Terms S 4353 1936 Adding Judges/Courts/Terms S 4664 1936 Adding Judges/Courts/Terms S 3477 1936 Adding Judges/Courts/Terms S 4038 1936 Adding Judges/Courts/Terms S 4457 1936 Adding Judges/Courts/Terms S 2909 1937 Studies that improve judicial efficiency
168 Table 4 6. Continued Bill type Bill number Year introduced Court rewarding t ype Issue S 488 1937 Adding Judges/Courts/Terms S 1816 1937 Adding Judges/Courts/Terms S 2115 1937 Adding Judges/Courts/Terms S 3010 1937 Adding Judges/Courts/Terms S 3145 1937 Adding Judges/Courts/Terms S 1550 1937 Adding Judges/Courts/Terms S 1986 1937 Adding Judges/Courts/Terms S 2010 1937 Adding Judges/C ourts/Terms S 3469 1938 Studies that improve judicial efficiency S 3192 1938 Adding Judges/Courts/Terms S 3204 1938 Adding Judges/Courts/Terms S 4017 1938 Adding Judges/Courts/Terms S 4086 1938 Adding Judges/Courts/Terms S 3373 1938 Adding Judges/Cou rts/Terms S 3554 1938 Adding Judges/Courts/Terms Table 4 7 Number of s ponsors of Senate c ourt r ewarding l egislation r eported out of c ommittee per y ear by p arty, 1925 1938 Year Republican Democrat Independent 1925 7 2 1 1926 4 7 0 1927 3 3 0 1928 4 3 0 1929 4 2 0 1930 6 1 0 1931 2 0 0 1932 0 2 0 1933 1 3 0 1934 0 1 0 1935 1 15 0 1936 0 7 0 1937 0 9 0 1938 0 7 0
169 Table 4 8 Senate c ourt r ewarding b ills r eported out of c ommittee, 1939 1969 Bill type Bill number Year introduced Court rewarding type Issue S 70 1939 Studies that improve judicial efficiency S 1282 1939 Studies that improve judicial efficiency S 188 1939 Adding Judges/Courts/Terms S 438 1939 Adding Judges/Courts/Terms S 1554 1939 Adding Judges/Courts/Terms S 2185 1939 Adding Judges/Courts/Terms S 2557 1939 Adding Judges/Courts/Terms S 190 1939 Adding Judges/Courts/Terms S 474 1939 Adding Judges/Courts/Terms S 752 1939 Adding Judges/Courts/Terms S 1114 1939 Adding Judges/Courts/Terms S 1681 1939 Adding J udges/Courts/Terms S 2262 1939 Adding Judges/Courts/Terms S 3828 1940 Studies that improve judicial efficiency S 3990 1940 Salary/Miscellaneous Expenses S 3491 1940 Staff/Materials S 1050 1941 Salary/Miscellaneous Expenses S 1052 1941 Salary/Miscella neous Expenses S 208 1941 Adding Judges/Courts/Terms S 412 1941 Adding Judges/Courts/Terms S 1019 1941 Adding Judges/Courts/Terms S 1207 1941 Adding Judges/Courts/Terms S 482 1941 Adding Judges/Courts/Terms S 1961 1941 Adding Judges/Courts/Terms S 2 319 1942 Adding Judges/Courts/Terms S 2867 1942 Adding Judges/Courts/Terms S 2655 1942 Adding Judges/Courts/Terms S 2579 1942 National Defense/Security S 156 1943 Salary/Miscellaneous Expenses S 716 1943 Adding Judges/Courts/Terms S 734 1943 Adding J udges/Courts/Terms S 906 1943 Adding Judges/Courts/Terms S 932 1943 Adding Judges/Courts/Terms S 1559 1943 Adding Judges/Courts/Terms S 630 1943 Adding Judges/Courts/Terms S 620 1943 Staff/Materials S 1817 1944 Adding Judges/Courts/Terms S 1877 1944 Adding Judges/Courts/Terms S 1898 1944 Adding Judges/Courts/Terms
170 Table 4 8. Continued Bill type Bill number Year introduced Court rewarding type Issue S 1722 1944 Staff/Materials S 1747 1944 Staff/Materials S 346 1945 Studies that improve judici al efficiency S 920 1945 Salary/Miscellaneous Expenses S 565 1945 Salary/Miscellaneous Expenses S 1233 1945 Adding Judges/Courts/Terms S 940 1945 Adding Judges/Courts/Terms S 1163 1945 Adding Judges/Courts/Terms S 1365 1945 Staff/Materials S 344 194 5 Staff/Materials S 345 1945 Staff/Materials S 1801 1946 Adding Judges/Courts/Terms S 2264 1946 Staff/Materials S 175 1947 Salary/Miscellaneous Expenses S 48 1949 Salary/Miscellaneous Expenses S 566 1949 Salary/Miscellaneous Expenses S 52 1949 Addin g Judges/Courts/Terms S 638 1949 Adding Judges/Courts/Terms S 1747 1949 Adding Judges/Courts/Terms S 2707 1949 Adding Judges/Courts/Terms S 271 1949 Adding Judges/Courts/Terms S 2314 1949 Adding Judges/Courts/Terms S 3108 1950 Salary/Miscellaneous Ex penses S 2901 1950 Adding Judges/Courts/Terms S 3098 1950 Adding Judges/Courts/Terms S 3099 1950 Adding Judges/Courts/Terms S 3093 1950 Adding Judges/Courts/Terms S 3921 1950 Staff/Materials S 16 1951 Salary/Miscellaneous Expenses S 32 1951 Salary/M iscellaneous Expenses S 2240 1951 Salary/Miscellaneous Expenses S 1203 1951 Adding Judges/Courts/Terms S 32 1953 Salary/Miscellaneous Expenses S 1663 1953 Salary/Miscellaneous Expenses S 1349 1953 Adding Judges/Courts/Terms S 15 1953 Adding Judges/Co urts/Terms S 3131 1954 Studies that improve judicial efficiency S 3873 1954 Salary/Miscellaneous Expenses SJR 158 1954 Adding Judges/Courts/Terms
171 Table 4 8. Continued Bill type Bill number Year introduced Court rewarding type Issue S 2910 1954 Addi ng Judges/Courts/Terms S 2975 1954 Adding Judges/Courts/Terms S 584 1955 Studies that improve judicial efficiency S 977 1955 Studies that improve judicial efficiency S 462 1955 Salary/Miscellaneous Expenses S 1256 1955 Adding Judges/Courts/Terms S 34 10 1956 Salary/Miscellaneous Expenses S 116 1957 Adding Judges/Courts/Terms S 264 1957 Adding Judges/Courts/Terms S 324 1957 Adding Judges/Courts/Terms S 430 1957 Adding Judges/Courts/Terms S 472 1957 Adding Judges/Courts/Terms S 697 1957 Adding Judg es/Courts/Terms S 1060 1957 Adding Judges/Courts/Terms S 1224 1957 Adding Judges/Courts/Terms S 2413 1957 Adding Judges/Courts/Terms S 2700 1957 Adding Judges/Courts/Terms S 2701 1957 Adding Judges/Courts/Terms S 2702 1957 Adding Judges/Courts/Terms S 2703 1957 Adding Judges/Courts/Terms S 2714 1957 Adding Judges/Courts/Terms S 2747 1957 Adding Judges/Courts/Terms S 2773 1957 Adding Judges/Courts/Terms S 2832 1957 Adding Judges/Courts/Terms S 2840 1957 Adding Judges/Courts/Terms S 2864 1957 Add ing Judges/Courts/Terms S 2673 1959 Adding Judges/Courts/Terms S 1164 1959 Adding Judges/Courts/Terms S 1947 1959 Staff/Materials S 2850 1960 Adding Judges/Courts/Terms S 1824 1961 Adding Judges/Courts/Terms S 2102 1961 Adding Judges/Courts/Terms S 912 1961 Adding Judges/Courts/Terms S 3070 1962 Adding Judges/Courts/Terms S 1686 1963 Salary/Miscellaneous Expenses S 721 1963 Adding Judges/Courts/Terms S 979 1963 Adding Judges/Courts/Terms S 980 1963 Adding Judges/Courts/Terms S 102 1963 Adding J udges/Courts/Terms
172 Table 4 8. Continued Bill type Bill number Year introduced Court rewarding type Issue S 2696 1964 Adding Judges/Courts/Terms S 1666 1965 Adding Judges/Courts/Terms S 1804 1965 Adding Judges/Courts/Terms S 2070 1965 Adding Judges /Courts/Terms S 102 1965 Economy S 159 1967 Studies that improve judicial efficiency S 475 1967 Adding Judges/Courts/Terms S 828 1967 Adding Judges/Courts/Terms S 945 1967 Adding Judges/Courts/Terms S 1465 1967 Adding Judges/Courts/Terms S 2349 1967 Adding Judges/Courts/Terms S 2624 1969 Studies that improve judicial efficiency S 1508 1969 Salary/Miscellaneous Expenses S 981 1969 Adding Judges/Courts/Terms S 1646 1969 Adding Judges/Courts/Terms S 3122 1969 Adding Judges/Courts/Terms S 3225 1969 Adding Judges/Courts/Terms S 952 1969 Adding Judges/Courts/Terms
173 Table 4 9. Senate c ourt r ewarding b ills r eported out of c ommittee, 1970 2008 Bill type Bill number Year introduced Court Rewarding Type Issue S 4262 1970 Addi ng Judges/Courts/Terms S 1396 1971 Studies that improve judicial efficiency S 2560 1971 Studies that improve judicial efficiency S 2330 1971 Salary/Miscellaneous Expenses S 2854 1971 Salary/Miscellaneous Expenses S 230 1971 Adding Judges/Courts/Terms S 733 1971 Adding Judges/Courts/Terms S 1361 1973 Adding Judges/Courts/Terms S 1724 1973 Staff/Materials S 782 1973 Staff/Materials S 271 1973 apportionment S 596 1973 Evidence S 3021 1974 Adding Judges/Courts/Terms S 582 1975 Salary/Miscellaneous Expenses S 12 1975 Salary/Miscellaneous Expenses S 14 1975 Salary/Miscellaneous Expenses S 286 1975 Adding Judges/Courts/Terms S 723 1975 Adding Judges/Courts/Terms S 729 1975 Adding Judges/Courts/Terms S 2255 1975 Adding Judges/Courts/Terms S 2387 1975 Adding Judges/Courts/Terms S 2412 1975 Adding Judges/Courts/Terms S 2752 1975 Adding Judges/Courts/Terms S 22 1975 Adding Judges/Courts/Terms S 287 1975 Adding Judges/Courts/Terms S 565 1975 Staff/Materials S 1283 1975 Staff/Materials S 537 197 5 apportionment S 2923 1976 Salary/Miscellaneous Expenses S 2887 1976 Adding Judges/Courts/Terms S 1423 1977 Power for Judges to Remove Judges S 11 1977 Adding Judges/Courts/Terms S 195 1977 Adding Judges/Courts/Terms S 662 1977 Adding Judges/Courts/ Terms S 1819 1977 Adding Judges/Courts/Terms S 2149 1977 Adding Judges/Courts/Terms S 1613 1977 Adding Judges/Courts/Terms S 1315 1977 Staff/Materials S 2266 1977 Staff/Materials
174 Table 4 9. Continued Bill type Bill number Year introduced Court Rew arding Type Issue S 2253 1977 Arbitration S 3100 1978 Studies that improve judicial efficiency S 3375 1978 Studies that improve judicial efficiency S 2597 1978 Adding Judges/Courts/Terms S 3107 1978 Staff/Materials S 702 1979 Crime S 1873 1979 Add ing Judges/Courts/Terms S 237 1979 Adding Judges/Courts/Terms S 443 1979 Adding Judges/Courts/Terms S 1477 1979 Adding Judges/Courts/Terms S 1654 1979 Arbitration S 423 1979 Arbitration S 2483 1980 Studies that improve judicial efficiency S 2432 198 0 Adding Judges/Courts/Terms S 675 1981 Studies that improve judicial efficiency S 1700 1981 Adding Judges/Courts/Terms S 863 1981 Staff/Materials S 2222 1982 Adding Judges/Courts/Terms S 381 1983 Studies that improve judicial efficiency S 1535 1983 Copyright S 1013 1983 Bankruptcy S 2921 1984 Evidence S 704 1985 Adding Judges/Courts/Terms S 1923 1985 Adding Judges/Courts/Terms S 1853 1985 Staff/Materials S 1916 1985 Staff/Materials S 2529 1986 Salary/Miscellaneous Expenses S 951 1987 Studies that improve judicial efficiency S 1047 1987 Studies that improve judicial efficiency S 1515 1987 Studies that improve judicial efficiency S 1630 1987 Salary/Miscellaneous Expenses S 548 1987 Adding Judges/Courts/Terms S 1482 1987 Staff/Materials S 1 867 1987 Staff/Materials S 952 1987 Evidence S 1301 1987 Arbitration S 1134 1987 Agency Rule Making S 590 1989 Studies that improve judicial efficiency
175 Table 4 9. Continued Bill type Bill number Year introduced Court Rewarding Type Issue S 1834 1989 Studies that improve judicial efficiency S 293 1989 Salary/Miscellaneous Expenses S 594 1989 Adding Judges/Courts/Terms S 1272 1989 Adding Judges/Courts/Terms S 971 1989 Arbitration S 2224 1990 Studies that improve judicial efficiency S 2648 19 90 Adding Judges/Courts/Terms S 2099 1991 Immigration S 653 1991 Studies that improve judicial efficiency S 1569 1991 Studies that improve judicial efficiency S 646 1991 Adding Judges/Courts/Terms S 826 1991 Adding Judges/Courts/Terms S 1985 1991 Add ing Judges/Courts/Terms S 1623 1991 Copyright S 486 1993 Studies that improve judicial efficiency S 1422 1993 miscellaneous S 956 1995 Studies that improve judicial efficiency S 464 1995 Studies that improve judicial efficiency S 531 1995 Studies tha t improve judicial efficiency S 605 1995 Arbitration S 1887 1996 Adding Judges/Courts/Terms S 996 1997 Studies that improve judicial efficiency S 1189 1997 Studies that improve judicial efficiency S 506 1997 Copyright S 2143 1998 Studies that improve judicial efficiency S 2516 1998 Adding Judges/Courts/Terms S 1727 1998 Copyright S 113 1999 Studies that improve judicial efficiency S 625 1999 Adding Judges/Courts/Terms S 1418 1999 Adding Judges/Courts/Terms S 461 1999 Technology S 2915 2000 Addi ng Judges/Courts/Terms S 2272 2000 Child Care / Abuse S 1046 2001 Studies that improve judicial efficiency S 1099 2001 Studies that improve judicial efficiency S 420 2001 Adding Judges/Courts/Terms S 1023 2003 Salary/Miscellaneous Expenses
176 Table 4 9 Continued Bill type Bill number Year introduced Court Rewarding Type Issue S 1125 2003 Adding Judges/Courts/Terms S 1720 2003 Adding Judges/Courts/Terms S 878 2003 Adding Judges/Courts/Terms S 2107 2004 Studies that improve judicial efficiency S 2742 2004 Studies that improve judicial efficiency S 256 2005 Adding Judges/Courts/Terms S 2292 2006 Studies that improve judicial efficiency S 378 2007 Studies that improve judicial efficiency S 702 2007 Studies that improve judicial efficiency S 163 8 2007 Salary/Miscellaneous Expenses S 1327 2007 Adding Judges/Courts/Terms S 221 2007 Arbitration S 3296 2008 Studies that improve judicial efficiency S 2774 2008 Adding Judges/Courts/Terms
177 Table 4 10 Cochrane Orcutt r egre ssion e stimation r esults for Senate c ourt r ewarding b ills r eported o ut of c ommittee by y ear, 1925 2008 Variable Coefficient (Standard Error) P Value Judicial Review .20 (.21) .33 Supreme Court Dissent Rate .05 (.02) .04 Criminal Landmarks .27 (.33) .42 Civil Liberties Landmarks .02 (.23) .93 Economic Landmarks .36 (.37) .33 Institutional Power Landmarks .32 (.58) .58 Original Jurisdiction Landmarks .03 (1.16) .98 Polarization 10.69 (3.64) .00 Ideological Institutional Distance .03 (.03) .2 6 Divided Government .98 (.85) .26 Constant 10.74 (2.05) .00 N 81 Residual Test .26 (.11) .02 Durbin Watson (Original) (Transformed) 2.50 1.88
178 Table 4 11 Negative b inomial r egression e stimation r esults for Senate a dministrati ve c ourt r ewarding b ills r eported o ut of c ommittee by y ear, 1925 2008 Variable Coefficient (Standard Error) P Value Judicial Review .07 (.07) .34 Supreme Court Dissent Rate .02 (.01) .04 Criminal Landmarks .07 (.10) .47 Civil Liberties Landmarks .08 (.08) .32 Economic Cases Landmarks .03 (.14) .82 Institutional Power Landmarks .02 (.20) .91 Original Jurisdiction Landmarks .30 (.40) .45 Polarization 2.88 (1.36) .03 Ideological Institutional Distance .01 (.01) .46 Divided Government .09 (. 32) .77 Constant 3.20 (.77) .00 .69 N 82 Residual Test Durbin Watson (Original) .13 (.11) 1.99
179 Table 4 12. Cochrane Orcut t r egression e stimation r esults for n on a dministrative Senate c ourt r ewarding b ills r eported o ut of c ommittee by y ear, 1925 2008 Variable Coefficient (Standard Error) P Value Judicial Review .13 (.09) .17 Supreme Court Dissent Rate .01 (.01) .26 Criminal Landmarks .16 (.15) .28 Civil Liberties Landmarks .10 (.10) .34 Economic Cases Landmarks .08 (.17) .63 Institutional Power Landmarks .01 (.26) .97 Original Jurisdiction Landmarks .69 (.52) .19 Polarization 4.48 (1.63) .01 Ideological Institutional Distance .02 (.01) .14 Divided Government .38 (.38) .32 Constant 1.65 (.92) .08 N 81 Residual Test .25 (.11) .02 Durbin Watson (Original) (Transformed) 2.50 1.81
180 CHAPTER 5 THE RELATIONSHIP BETWEEN THE HOUSE OF REPRESENTATIVES AND THE FEDERAL JUDICIARY Introduction The relationship between Congress and the federal courts has swayed back and forth from periods of friendship to hostility. This vacillation was readily a pparent in Chapter 4 where the Senate engaged the judiciary in these different ways. The sources of differences can be related to both the internal and external contexts o f these branches Internal ly, the relationship was a function of the utilization of judicial review, landmark policy agenda, and the ideological disposition of the two branches. E xternally the country exhibited change as well, such as the Great Depression and the which affected the relationship between the Senate and the judiciary with the Senate increasing efforts to control the judiciary in response to rulings and judicial actions that it deemed inconsistent with its preferences. I anticipated that the Senate relationship would be unique with respect to the House given the power of advice and consent that creates an exclusive form of checks and balances between the branches. From the principal agent perspective, the Senate was qu ick to sanction the Court as it issued hostile opinions regarding Congress authority or utilized judicial review to strike down legislatio n In addition, the frequency of attempts to control the judiciary grew as the two branches ideologically grew furthe r apart and as the Court began to establish more controversial landmark policies. Furthermore, the results indicated that the Senate als o attempts to control the judiciary through offering incentives, which was largely driven by polarization. I expect tha t the House will also attempt to control the courts as it too views itself as the principal in the princ ipal agent relationship. Nonetheless due to the different
181 institutional arrangements, the House is very likely to exhibit an alternative structure in i ts relationship with the federal judiciary. First, the lack of power regarding advice and consent to judicial nominees suggests that the House may have less of a vested interest in the maintenance of the judicial branch than the Senate. In addition, differ ences bet ween the chambers in term length also may imply that a different relation ship exists between the House and the judicial branch. Two year terms clearly would tie this chamber more closely to public sentiment and the constant demands of reelection would suggest that conflict with the Court and the judicial branch in general may be particularly useful when attempting to appeal to constituents within the district. Thus, while the principal agent model is still a useful way to conceptualize the relati onship between the House and the judicial branch the und erlying motivations behind attempts to control the judicial branch may differ from that of the Senate In order to examine the relationship between the House and the federal judiciary, this chapte r will proceed in the same manner as the prio r one. House court curbing will be examined first where I will assess specific court curbing periods. This section will be followed by a quantitative analysis which will examine the underlying motivations for w hy the House may engage in court curbing behavior over time. House court rewarding behavior will then be examined in a s imilar manner. I anticipate that distinct trends will be found that will help explain the Hous ry 1 1 As indicated in the C hapter 4, while the scope of this dissertation and more particularly this chapter involves the relationship between the House and the entire feder al judiciary, most of this chapter describes the relationship between the House and the Supreme Court. As previously detailed, the Supreme Court is the primary representative of the federal judiciary, and as such, the House often tions by sanctioning or rewarding the entire judiciary. Thus, while most inter branch interaction is displayed between the House and the Supreme Court, the congressional response ultimately affects the entire federal judiciary.
182 House Court Curbing Legislation over Time As House court curbing attempts are examined over time by era, several distinct patterns emerge. These patterns vary by era, with a progressive increase in these bills over time. This relationship can be see n in Figure 5 1, which displays the amount of House court curbing bills reported out of committee from 1925 2008. The earliest era (1925 1938) reveals very few court curbing attempts. The seco nd period (1939 1969), still showed relatively minor amounts o f court curbing activity as only one such measure was reported out of committee during most of the observed years The modern era (1970 2008) witnessed more consistent attempts at curbing the Court, with the frequency of these measures drastically increas ing. Due to these various patterns, the next three subsections will specifically examine House court curbing by era. In this examination, explanations will be proffered as to why certain periods have varying amounts of this type of legislation. Furthermore an effort to draw comparisons with the Senate chamber will be made throughout. Also as seen in the Senate analysis, several distinc t patterns emerge when one examines who is sponsoring thi s type of legislation. Figure 5 2 presents the individual DW Nomi nate value of those Representatives that are sponsoring court curbing legislation versus the majority party median of the period. With few exceptions, court curbing efforts were introduced by Representatives who were ideologically close to the majority par ty median. While a generally consistent pattern was observed during some of the Senate eras, a few disparities can be found between the two. With regard to the first era (1925 1938), House court cur bing efforts were undertaken both by liberals and conserva tives which contrast s with most of the Senate attempts of this period which were spear headed by liberals attacking a conservative Court. The second era (1939
183 1969) also yields conflicting patter ns between chambers. Whereas House attempts were aligned wit h the liberal majority, Senate court curbing activity primarily was a conservative enterprise. The final era (1970 2008) witnessed court curbing emerging from the ranks of the majority party for both the House and the Senate. Initial Conservatism and the Switch in Time: 1925 1938 The beginning of this era was marked by the Judiciary Act of 1925, which afforded the Supreme Court a discretionary docket. The passage of this legislation occurred during a time when the legislative and judicial branches were i deologically aligned, as both were dominated by conservatives. This ideological alignment was shown on Figure 3 8, which displayed the ideological distance between the House and Court from 1925 2008. From the figure, one can see that the institutions wer e relatively close together during the initial part of this era. Thus, since the Court was predisposed to rule in a manner that was consistent with Congressional preferences, it makes sense that Congress would not oppose Fo coincide with Congressional preferences, as the Court decided cases predominantly in the area of economics. These cases advanced the laissez faire policy championed by the dominant Republican coalition, and hence there initially was little tension between the legislative and judicial branches during this time frame. This lack of tension is particularly noticeable as instances of House court curbing legislation were relativ ely rare during this initial period. The lack of this type of sanctioning a ctivity is displayed in Table 5 1, which contains those instances of House court curbing bills that were reported out of committee from 1925 1938. W hen compar ed to the Senate, the pattern of court curbing legislation in the House w as
184 drastically different. First, only six court curbing measures were reported out of the Hou se during this time period. That contrasts to the nineteen measures that were reported out of a Senate committe e during this same time frame. One poss ible explanation for the difference in the amount of court curbing legislation being reported in these two chambers lie s in the unique constitutional authority vested in the Senate versus the House. I t is plausible t hat the Senate monitors the Court more closely than the House due to its checks and balances role that comes with the power of advice and consent. Hence, the Senate may approach its relationship with the judiciary differently, and may more actively monitor and attempt to sanction the judiciary more through court curbing measures. This is consistent with the underl ying proposition that while each chamber view s itself as the principal in the r elationship with the judiciary, the underlying motivations and meth ods at control may vary between the two The next major difference between the chambers and their court curbing attempts during this era involves the consistency of these measures being reported out more constant, in that there wer e no breaks in curbing activity. T he Se nate continued to threaten sanction of the judiciary throughout this era and typically these attacks were a response to the continuation of conservative rulings on the Court following the New Deal re alignment This was shown by the increasing court curbing efforts occurring in the Senate following election in 1932. This increase in curbing activity coincided with the change in party control of the Senate and the White House, alon g with protect expansionary New Deal legislation. Thus, there was an ideological split between
185 the institutions, as the Senate grew mor e liberal, and continued its effort to control the conservative Court by reporting more court curbing measures out of committee. This type of policy oriented curbing activity did not occur in the House, as the observable activity is both sporadic and idiosyncratic during this same era. While there were a few attempts during the early part of this time period, there was a hiatus in court curbing legislation between 1931 and 1937. This hiatus is interesting, as during this period, the Senate was continuing its assault on the Court. However, eventually following lead of the Senate, the House did repo rt out court curbing measures in 1937 and 1938. The led to conservative fashion, the Senate was more consistent in threatening to sanction the Court over this time frame, while the House appeared to take its cue from the Senate, relying on it to lead the primary assault on the judiciary T he type of court curbing measures being reported out of committee supports this assertion as it targeted either specific decisions, such as Hammer v. Dagenhar t (1918) involving child labor, or targeted the institution of the Court itself, as seen with S. 1392 (1937) which would add justices to the Supreme Court, or S. 3232 (1938), which would set age limits on those serving in the federal judiciary, effectively forcin g many on the Court to retire. The House bills, on the other hand, did not target the institution of the Court itself. Rather, most of the House efforts initially focused on local courts, and later involved other matters that were unrelated to the visceral inter branch conflict over the scope of economic regulations. For example, the th ree court curbing bills reported out of
186 committee from 1925 1929 sought investigations, and proposed impeachment or removal for particular judges. A subsequent measure (H.R. 6178 (1937)), limited judicial review by appellate courts from habeas corpus pet itions involving warrants of removal directs a prisoner to be removed from incarceration from a district to one that issued the warrant order in any habeas corpus proceeding rev iew, was not a direct assault on the Court. Rather, it showed deference to the initial determination by a district cour t judge regarding the validity of the warrant of removal. This does not mean that the House avoided all encounters with the Court. In particular, the House showed its willingness to assert itself into the economic deb ate over labor issues, as it reported o ut H.R. 5315 (1931 ) that provided : Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in th e corporate and other forms of ownership association, the individual unorganized wo rker is commonly helpless to exercise actual liberty of contract and to protect his fr eedom of labor, and thereby to obtain acceptable terms and conditions of employment definitions of and limitations upon, the jurisdiction and aut hority of the courts of the United f the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to proh ibit any person or persons This bill was a precursor to the National Labor Re lations Act of 1935, and included many of the provisions of H.R. 5315. Both of these acts were opposed by conservative Republicans, wh o viewed collective bargaining rights as hostile
187 interferences with business. While the validity of H.R. 5315 was never tested, it is clear that these measures were hostile to the conservative philosophy dominating the Court 2 With this one exception inv olving labor disputes, the House largely stayed out of the policy debate with the Court. Instead, it appears that the House allowed the Senate to spearhead the efforts targeting the Cour t. This p attern can be attributed to the constitutional arrangements p reviously alluded to. Because the Senate maintains advice and consent authority over the composition of the judicial branch, and is more insulated from popul ar pressures, the Senate is more likely to focus on matters of institutional maintenance and big pi cture separa tion of powers concerns. I t was thus the more House, on the other hand, without the close ties to the judiciary, and shorter terms, only began to confront the Court when it became electorally advantageous to do so In other words, only when the population began to support the New Deal programs and elect like minded Representatives, is when House members found it advantageous to pursue attacks on the Court that w as ruling against majoritarian preferences. Thus, the hiatus in House court curbing attempts ended as the conflict between Congress and the Court reached its height, with new measures being reported out as the New Deal gained more support The principal a gent model can further help illustrate the conflicting patterns observed between the Senate and the House and how these institutions approached the Court during this era. The Senate, having longer term policy goals, attempted to 2 It should be noted that t he validity of the National Labor Relations Act of 1935 was called into question. In National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937), the Supreme Court upheld the statute. However, this ruling was handed down during the intense strugg le between the Court and
188 sanction the Court as it co ntinued to rule contrary to its policy preferences. The goal conflict between the Senate and the Court was primarily based on the opposing policy preferences between these institutions This contrasts with the events observed in the House, which due to the shorter terms, have the primary goal of being reelected. Therefore, when it became electorally advantageous to pursue policy contrary to the 3 These differing motivations h elp explain the different patterns observed between each chamber and the Court. Finally, and as was seen with the Senate, it should be noted that there was a change with regard to who was attempting to curb the Cou rt during this era. Initially the court c urbing attempts of this era were introduced by Representative Graham (R PA). His bills focused on investigat ions involving lower feder al court judges. As the ideological complexion of Congress changed, so too did the sponsorship of court curbing bills. T he bills reported out of committee in 19 37 and 1938 were both introduced by Democrats and are consistent with an ideological explanation of the activity. As the House grew more liberal, attempts targeting the federal judiciary began to appear While not as n umerous as the Senate, the ideological pattern was the same with l iberal congressmen attacking a lagging conservative judiciary. Congress as an institution was united, with both chambers being Democratic and adhering to a more progressive and liberal ideol ogy than the Court. T represent more 3 This is not to suggest that House members do not care about policy. Many members were obviously elected in response to the economic crisis and ran on a platform promising reform that involved adhering to New Deal proposals. The House members thus pursue majoritarian policies, with its goal being to garner more support to enable reelection. The Court on the other hand, may have policy goals in mind, but no real co nstituency to appeal to. Thus, these goals potentially conflict, leading to sanctioning attempts by House members.
189 substantive threats; it targeted the Court directly. T efforts are not inconsequential, but more frequently targeted lower courts and/or were related to localized political con flicts. From this perspective, the decisions of the Court that began to uphold New Deal regulations can be better explained by the credible threats of sanction that the Senate reported and not the idiosyncratic efforts of the House 4 World War, Post War Period and the Warren Court: 1939 1969 Similar to the prior era, this time frame witnessed sporadic curbing activity in the House. This can particularly be seen on Table 5 2, which presents all instances of House court curbing bills reported out of commi ttee from 1939 1969. As one can see foll owing 1939 until 1947, there is a brief hiatus in court curbing measures being reported out of the House. This hiatus corresponds to the one observed with in the Senate, and indicates that the conformance of ideolo gical policy goals across the two branches helped to establish an armistice following the early New Deal conflict. This hiatus would only be temporary, as the landmark policy direction and composition of the Court would soon chan ge. With the Republican ap pointment of Earl Warren as chief justice the Court would continue to realize its discretionary agenda authority and delve into more controversial civil liberties cases. Whereas the prior era was defined by a Court upho lding laissez faire economic policie s, and a battle with the elected branches over economic regulation, this latter era would see the Court favoring 4 An alternative explanation to the modification of judicial behavior is presented by Gely and Spiller (1992), who create a model to explain packing plan. In particular, Gely and Spiller argue that following the election in 1936, many state legislatures switched into Democratic control, and hence the Court recognized that the possibility of a constitut ional amendment altering the Court posed a true threat. Thus, while both chambers of Congress had opposing views to the Court, it was only when state legislatures changed ideologically when the threat was real, and hence the Court altered its path of decis ion making. However, it should be noted that the serious threats from Congress did not occur until after 1936 as well, when the Senate led the efforts to alter the Court. Thus, while the composition of state legislatures may have played a role in changing the judicial behavior of the justices, the composition and legislation from Congress, but mainly the Senate, also played a key role.
190 the claims of insular minorities and civil rights litigants. A s detailed in Chapter 4, the Court hinted at this shift in its opinion in United States v. Carolene Products Co., 304 U.S. 144 (1938). However, the Court did not immediately change its rulings. Rather, the Warren Court began to decide many controver sial cases involving these different issue types. This transformation explain s the in itial hiatus and the progressive growth of the Senate and House court curbing attempts dur ing the second era. After ceding control of economic policy to the elected branc hes, the Court slowly began to mark out the boundaries of its prospective domain within the area of civil liberties and civil rights. This metamorphosis was measured, however, and would take decades to develop. The Vinson Court therefore had a reasonably h armonious relationship with Congress; even if the Court itself was known for its internal conflicts. With the Warren Court more forcefully taking on these controversial issues in landmark cases such as Brown v. Board of Education (1954), the harmony betwee n these institutions turned to discord. B oth the House and the Senate increased their court curbing efforts during this period, and yet the chambers did so in a unique manner. s attempts were focused on a handful of specific issues, suc h as immi gration or agency rule making issues that most likely were crucial in some local constituencies where electoral consequences were pronounced While these sanctions would restrict judicial review or the jurisdiction of the court, they were not particularl y hostile toward the judicial branch introducing legislation as a response to perceived hostile rulings by the Court.
191 For example, two instances of court curbing we re i ntroduced in Chapter 4 that clearly displayed the institutional orientation of the Senate First, the Senate reported out measures involving apportionment, which was a direct response to Baker v. Carr (1962), Reynold s v. Sims (1964), and Wesberry v. Sanders (1964). It is important to note that these rulings primarily affected the membership of the House or state legislatures Therefore, one would anticipate that the House would have been the more appropriate instituti on to attempt sanction by reporting out court curbing measures. Yet, the House did not respond in such a manner, and instead relied on the Senate to safeguard Congressional authority and counter these hostile decisions. Second when the Court challenged t he scope of authority regarding Congressional investigations into Communist activities, the Senate was the chamber that responded by introducing legislation targeting the Court. Recall that the Supreme Court appeared to render opposing decisions, which fol lowed the jurisdiction stripping bill introduced by the Senate, as the opinions of Watkins v. United States (1957), and Barenblatt v. United States (1959) contradict each other. In cases with almost identical background facts, the Court held in Watkins tha alleged Communist ties were improper, as the questions asked were not pertinent or were too vague to properly notify the individual of the purpose of the investigation. However, in Barenblatt, the Court appeared t o perform an about face, as they held that unlike in Watkins, the Defendant waived the pertinency challenge for not specifically asserting it, and that he could not assert the Fifth or First amendments, as any
192 Constitutional interest alleged was outweighed in society. Watkins and Barenblatt both involved conflicts with the House. Specifically, both cases concerned an individual who refused to test ify to the House Committee on Un American Activities. Thus, similar to the apportionment issue, one would anticipate that as the Court targeted the scope of Congressional investigations in the House, that the House would be the more likely chamber to respo nd to the adverse ruling Again, this did not occur. It was the Senate that reported out legislation threatening to sanction the Court. This patter n supports the hypothesis that the two chambers approach their relatio nship with the Court in unique ways The Senate views its role as one that preserves the separation of powers, whereas the House appears to take its cue from the Senate and respond accordingly. This is seen with the nature of court curbing during these two eras, which differs by chamber, as o ne directly responds to perceived institutional threats and attempts to reign in the Court, while the other merely reports out this legislation on specific issues, such as immigratio n, and agency rule making. T he rily motivated at controlling the Court, particular issues that are important to individual Representatives. 5 The Senate therefore 5 This especially appears to be the case when one compares the substantive nature between House and Senate court curbing b ills. From Table 4 2, which presents the Senate court curbing bills reported out of committee from 1939 1969, there are three specific court curbing measures (S. 1988 (1948), S. 2646 (1957), S.J.R. 103 (1965)) that refer to prior Supreme Court cases, and are obvious attempts to alter judicial decision making. This contras ts with the measures on Table 5 2, which presents the House court curbing measures reported out during the same time frame. While the issues range from immigration and agency rulemaking to labor disputes, not one of these measures refers to a specific Supreme Court decision. Rather, these primarily involve minor policy issues that are important to individual Representatives.
193 appears to monitor the Court of authority and respond to what it perceives to be institutionally hostile acts. The House, on the other hand, is more likely to engage in smaller scale conflicts upon issues that may have implications for localized constituencies. A final observation c oncerning this era addresses the ideological origins of this curbing activity. One would anticipate that sanctioning activity would be more likely to emanate from the right as the Court veered left under Chief Justice Warren. This pattern was in fact obser ved in the Senate, as both Southern Democrats and Republicans joined forces to attack the Court. The same could not be said of the House, since court curbing efforts were sponsored by liberals and conservatives alike. This reinforces the conceptualization of the House engaging in localized conflicts with electoral consequences. Increasing Inter branch Dispute From Burger to Roberts: 1970 2008 The ascension of Warren Burger to the center chair and the addition of three Ni xon appointees to the bench began a prolon ged ideological shift to the right for the contemporary Court. While the majority in Congress was Democratic at the beginning of this time frame, there were still many conservatives entrenched in the party, which would appear to translate to friendlier rel ations between the branches. This initially can be seen in the first five years of the Burger Court, in which there were no instances of House court curbing behavior. T his hiatus was brief, however, and it was not indicative of the future activity display e d i n Table 5 3, which shows identifies instances of House court curbing behavior from 1970 2008. As the table indicates there is an overall drastic increase in instances of court curbing behavior as compared to the previous eras. Whereas there
194 were only six measures reported from committee from 1925 1938 and fourt een from 1939 1969, there are ninety three measures reported out from 1970 2008. T he House at first appeared to focus on substantive policy issues that were important to electoral fates o f i ndividual Representatives. When the House remained under Democratic control, court curbing efforts continued to target a cluttered collection of issues such as trade, immigration, the environment, banking and fraud, business, and the death penalty. New efforts were also undertaken to preclude judicial review for cases involving anti trust litigation, tort reform, terrorism, copyright infringement, religious freedom, and campaign spending. Support for these efforts tended to vary with respect to political party affiliation. When Republicans gained control of Congress in 1994, the issues began to more closely aligned to the New Right agenda that would engender growing amounts of polarization within the party system Unlike the prior eras, the Republican Ho use also gave notice that it was no longer willing to take a back seat to the Senate in launching direct attacks on the Court. This fact is evident in those court curbing efforts that targeted specific Supreme Court decisions, or aimed at precluding the Su preme Court from hearing a controversial issue in its entirety. For example, following 1995 through 2003, there were five measures reported Texas v. Johnson (1989). In Johnson the Supr eme Court held that burning the flag constituted speech, and was therefore protected by the First Amendment. Many conservatives were outraged by the decision, which translated into increased efforts by the House to reverse it. Likewise the Republican Hous e moved forward measures on many other
195 socially divisive topics, including school prayer, the pledge of allegiance, and gay marriage. Unlike the substantive measures precluding judicial review presented above, these divisive pieces of legislation primarily were attempts by House members to pander to conservative constituents and score points. Some of these attempts represented constitutional amendments, for which the likelihood of success obviously was infinitesimally low. This era therefore continued the H electoral goals and credit claiming before constituencies, but it raised the volume exponentially. Republicans in the House now found it electorally advantageous to attack the Court. This explanatio n is supported by the fre quency o f court curbing legislation throughout th is era. Democrats, who were in control of the House for t wenty seven years put forth forty four court curbing measures. This is in drastic contrast to the forty nine measures that Republicans reported out of committee in half the time. This indicates a particular hostility toward the judicial branch by Republicans, which once again is likely attributed to the electoral advantages to attacking an institution that was producing unpopular decisions. However, w hat is striking about the frequency and intensity of these Republican court curbing measures, was that many of the measures targeted a conservative Supreme Court. This suggests that House court curbing in the modern era may not be related to the ideology o f the institutions. Rather, electoral factors such as polarization
196 behavior. This would explain why conservatives would attack conservatives, since doing so may garner support am ong particular constituents. Another explanation of Republican attacks lies within the changing structure of the party system. With many of the Southern Democrats in the process of defecting the Republican Party found it electorally advantageous to focus on these divisive social issues that give n agenda transformation were now seen as being housed within the domain of the judicial branch. While the Supreme Court may have been conservative, it is possible that it was not conservative enough as the new righ t wing of the Republican Party. Alternatively, it was not about the Court at all, but just raising these issues to appeal to single issue voters. A less understood point regarding the se House court curbing attempts is that many of them were administrative in nature As discussed in Chapter 4, administrative court curbing occurs when one chamber of Congress attempts to prevent judicial review or precludes jurisdiction of the Court from scrutinizing decisions made by executive officials. An example of this t ype of behavior occurs frequently in immigration matters, and specifies that any decision made by the attorney general is final, and not subject to judicial review. Like the administrative court curbing efforts made in the Senate, House efforts reflect a dr amatic increase during the 1980 s. This growth can be found i n Table 5 4, which separately lists all instances of administrative House court curbing bills reported out of committee from 1925 2008. Th e increase in administrative court curbing measures c oincides with the expansion of the federal government over the past several
197 decades. As the scope of government expanded, so too did the number of administrative agencies. Again, there is a certain irony regarding the nature of these particular ad ministra tive efforts The federal judiciary was initially given great oversight over administrative determinations regarding agencies, since it was initially feared by Congress that the administration would not adhere to Congressional preferences in implementing c ertain policies. This was especially the case during the 1970 s, as a Democratic Party controlled Congress was fearful that President Nixon would not implement certain health, safety and environmental regulatory policie 427). In exercising this power, the federal courts adopted a heightened standard of review involving agency decisions that soon conflicted with the prefe rences of Congress. I n response, Congress has attempted to curb the se court s interpretations. In doing so, the legislative branch has acted to insulate executive branch officials from judicial scrutiny. Democrats have frequently been the promoters of this new form of legislation thirty four of the fifty five administrative court curbing attempts that were reported out of c ommittee were introduced by a Democrat. Rep ublicans were more likely to engage in non administrative strategies, but they still engaged in some of it by reporting out twenty one pieces of administrative court curbing legislation Based up on both parties us age of this type of legislation, on e may wonder why the parties engage in such conduct. After all, while it makes sense for a Democratically controlled Congress to insulate a Democrat executive, and a Republican controlled Congress to avoid judicial
198 interp retations in favor of one produced by a Republican executive, why would Democrats insulate a Republican executive and vice versa? One explanation lies in the particular issues that each party was addr essing. As displayed on Table 5 4, during the Reagan an d Bush administrations, the Democratically controlled House focused primarily on issues involving immigration, banking, crime, business and trade. These are issues that are not socially divisive, and hence may generate some bipartisan support, especially f Therefore, due to the previously mentioned heightened standard of review adopted by the courts, the Democrats may have preferred executive implementation, regardless of who was in the White House. T he i ssues that Republicans pushed forward in the Clinton Administration support this conclusion. Unlike the socially divisive issues that the Republicans addressed with general court curbing, they only utilized administrative court curbing for substantive policy issues, including crime, p ersonal property rights, terrorism and national security, copyright infringement and unemployment benefi ts. Once again, there was some bipartisan support for these issues, and hence Republicans were not fearful of executive implementation, especially by a fiscally conservative Democratic President. P arty structure may also play a role in explaining the increasing frequency of this form of legislation over time. While, administrative court curbing was primarily a Democratic phenomenon, the overall usage of this form of legislation continued to increase during the Republican controlled Congress. Attacking the court s was more popular amongst conservatives, and hence as the conservatives left the Democratic Party to become Republican, a more conservative party formed. The more conservative
199 wing of the party, led by House members such as Gingrich, continued to show hostility toward the judiciary throughout their control of power, regardless of the composition of the Court. Overall, whether one examines administr ative or non administrative court curbing, there appears to be several explanations regarding the increasing frequency of such legislation over time. These reasons include policy making concerns, electoral components, and party structure. While these poten tial explanations appear to account for the instances of House curbing activity, precise motivations need to be explored. Underlying Motivations, Results and Court Curbing Trends An overview of the history of court curbing with in the House chamber shows a substantial increase for the most recent of the three eras. The underlying sources of this growth, however, are not substantiated in falsifiable fashion, and this section now turns to a quantitative modeling approach to provide more robust conclusions. T he same hypotheses that were examined for the Senate will be tested with control variables that evaluate the landmark policy agenda, levels of party polarization, ideological institutional distance, and divided government. In order to test the hypotheses, the original database that includes House activity will be utilized. This dataset references all bills that were referred to the House Judiciary Committee and identifies only those bills that were reported out. Unlike the estimation results presented for the Senate, diagnostic tests showed that the data was overdispersed, but not affected by problems of serial correlation. In such instances, negative binomial regression models have been id entified as being the appropriate modeling strategy to use, and it is utilized in the House specific analyses. This modeling
200 strategy should permit a rejection of the null hypothesis that House court curbing is unrelated to the potential motivating factors identified above. 6 As disp layed in Table 5 5, there are substantive conclusions that map to the above analysis First, the se estimates offer no evidence that the House of rary to the hypothesis, but does match up to the historical account of House court curbing activity. For the period of this analysis, the House tended to follow the lead of the Senate. Whereas the Senate tended to react to incursions on what arguably could be seen as the landscape of legislative authority, the House was more likely to engage in small scale skirmishes that could be categorized as being important to localized constituencies. The House failing to res striking do wn of legislat ion is quite consistent when seen through this perspective. Based on both sets of results, the Senate clearly plays the role of the dominant principal in this bicameral inter branch context. Neither does the House respond to the prevailing level of disse nsus on the Court. This result maps to the finding of the Senate, suggesting that Congress as a whole is opinions. In effect, both chambers seem ready to engage in this type of activity and do not pounce in those term s where dissent is manifest. This indicates that Congress may not particularly be strategic when moving sanctions forward in the legislative process. The issue area in which the Court is announcing landmark policy directions, however, is related to the p roduction of possible sanctions upon the Court. Matching up 6 For more information regarding the appropriate models to use reg arding event count data that is also time series data, see Clark (2011, 137).
201 to the Senate finding, landmark policy production in the area of civil liberties is positive and significantly related to the movement of court curbing legislation to the floor of the House. This result was anticipated, since more controversial case decisions by the Supreme Court should elicit an institutional response. Such a relationship should be expected in the House, given the history of constituency mobilization against controversial landmark decisions in areas like desegregation, establishment clause limits, first amendment protections and abortion rights. From the above analysis, the House does not appear to respond directly and target the specific decisions, but rather the authority of the Court in general. It must be said, however, that the House may be less than earnest in these attempts and House members frequently may be acting to appeal to voters with the knowledge that sanctions will never be imposed. The remaining issue categories co ntrolling for criminal, economic and original jurisdiction landmarks fail to reject the null hypothesis. Clearly these are issues that could elicit a hostile response from the House. The electoral foundations of House curbing activity means this chamber is not as lik ely to emphasize such matters, but rather react to hot button civil liberties issues, which draw more scrutiny from voters. The remaining result in this area appears counterintuitive, but in the end is quite consistent with the emerging view of House activity. Landmark policy production in the negative and significantly related to House curbing activity. D uring the Rehnquist Court, several decisions were r endered, which struck down federal legislation that utilized the Commerce Clause as justification. 7 These decisions essentially were hailed as a victory 7 Two opinions are particularly noteworthy. First, the Court handed down United States v. Lopez (1995), which overturned the Gun Free School Zones Act of 1990. Most constitutiona l scholars have noted the
202 the Commer ce Clause. These decisions also had widespread appeal among conservatives that were actively participating in the court curbing game. Thus, unlike the responses within for conservative contests with the Court. Most important for our understanding of chamber differences is that contrary conclusions are drawn for the House and Senate for effects re lated to party polarization and institutional distance. In the House, it is the growing level of polarization between the parties that matters. The parameter result was positive and significant, indicating that as the parties grew more polarized, more cour t curbing attempts resulted in the House. This result was anticipated, and can be attributed to party structure, and chamber differences. Political parties have undergone a slow and steady realignment, in which areas once dominated by Southern Democrats sw itched to the contemporary alignment of Red State Republicans. As the party coalitions realigned and became ideologically cohesive on divisive social policies, electoral strategies, such as the targeting single issue voters, made judicial branch actors use ful targets. Although the Senate engaged in monitoring and sanctioning activity that was purposefully driven to under the Commerce Clause since the New Deal. The Rehnquist Court again held a federal act unconstitutional in United States v. Morrison (2000), which struck down portions of the Violence Against showed that these matters were unrelated to commerce, and hence Congress had ex ceeded its authority. For present purposes, these cases are important for showing that the Court considered many cases conservatives later came to pow er in the House, produced a favorable response. For more information regarding cases involving the Commerce Clause, and how it has been interpreted differently over time, 669)
203 safeguard legislative turf, the House was more often grounded in the reelection goals. Growing party polarization is associated with greater act ivity in the House of Representatives, but not within the Senate. The unique chamber foundations of court curbing activity can particularly be found when one compares the measures pursued by each chamber following the Republican Revolution of 1994. Wherea s the Senate repo rted out three socially oriented measures, all of which involved flag burning, the House pushed forward nine measures involving flag burning, school prayer, religious freedom, pledge of allegiance and gay marriage. It seems that the Senate too may have played the game, but given that the House has shorter election cycles it was the primary player in using court curbing legislation to appeal to the narrow interests that are so important to cobbling together electoral majorities. This, of co urse, may help explain the divergent results involving institutional distances. Unlike the results for the Senate, it appears as if the House may not particularly be concerned with the ideological nature of policy innovations as represented by the median p osition of the Court. The evidence suggests that the House is simply concerned about electoral consequences when introducing this type of legislation as opposed to institutional consequences. U nlike the Senate, the House does not appear to closely monitor the Court and its complexion in deciding whether to curb it. Rather the House appears to be motivated by primal goals of self preservation and the necessity of appealing to constituents. Conclusions on House Court Curbing The previous sections outlined s everal reasons why the House may attempt to engage in court curbing behavior. Based on these accounts, several conclusions can be
204 drawn. First, the House appeared to let the Senate take the lead in monitoring and sanctionin g the Court. This became clear du ring the first two eras of this study, in which the Senate sanctioned the Court in response to hostile judicial policy making that targeted Congress. While th e House would have been an appropriate chamber to respond to attacks that would have differential impact on its membership and ability to investigate, it is the Senate that spearheaded the genuine counterassaults lodged at the Court. This conclusion is buttressed by the finding for judicial review where the Senate responds and the House does not. The S enate is more concerned about maintaining boundaries located within our system of separation of powers and preserving the institutional authority of both chambers of Congress. The House has other motivations. When the House did engage the Court, it was of ten focused upon the divisive social policies that the Court was deciding As the Court began to decide more controversial disputes involving civil rights and liberties, the House responded by reporting more court curbing legislation out of committee. The opposite effect was observed for cases involving institutional power, which largely translates to federalism victories for the states. The transformation of the Supreme Court agenda following the 1925 Judiciary Act launched a slate of new issues into the p olitical discourse and the House was the more likely chamber to invoke these issues for electoral gain. It did, however, let off to some extent as the Rehnquist Court incrementally returned power to the states. This dual fold relationship is intuitive, as conservatives have shown hostility While issues have played a role in the Hou the Court, the recent surge in court curbing behavior primarily is a function of modern
205 political party structure and the realization of polarity and discernible distance between the two coalitions. As many conservative Democrats migrated into the Republican Party, the political parties have become more ideo logically cohesive Following this migration, conservatives have been particularly hostile toward the Court, showing an increasing willingness to attack it. This willingness has coincided with increasing polarization between the two ideologically cohesive parties. This is especially the case as the Court decides controversial social issues which are frequently invoked in targeted messages to single issue voters. This has been seen recently, with the conservative attacks involving issues such as flag burnin g, school prayer and gay marriage. The pursuit of this socially divisive agenda by conservatives, and the increasing willingness to attack the Court, has had implications for the relationship between the House, the Court and the executive b ranch. This is apparent with the rise of administrative court curbing, which occurs when the House passes legislation that prevents judicial review in favor of executive discretion and implementation of policy. This form of court curbing has involved non socially divisiv e issues ranging from business to immigration. However, administrative court curbing is still related to the previously identified factors, as it still represents hostility toward the judiciary in general, which is displayed by precluding judicial interpre tation in favor of executive implementation of policy. House Court Rewarding Legislation over Time As several motivating factors were found regarding House court curbing legislation, I anticipate that there will likewise be several reasons which explain the incidents of court rewarding legislation over time. However, whereas court curbing
206 legislation represents attempts b y the House to control the judiciary through sanctions, court rewarding legislation presents the opposite possi bility of controlling the judiciary through positive incentives. Thus, it is expected that many of the motivating factors previously identified in the court curbing section will have the opposite effect regarding court rewarding legislation. Based on an initial cursory review of c ourt rewarding legislation, there appears the possibility of reaching oppos ing conclusions. As Figure 5 3 indicates there is a decreasing trend of this type of legislation that occurs over this time period. This is in contrast to House court curbing effor ts, in which a drastic increase in the number of measures reported out of committee were noticed during the last era. Thus, the next several sections will discuss the possible causes of this declining trend in House court rewarding legislation over time. O ne such possibility that was also noted in the court curbing section involves ideology. With regard to court curbing, there was the potential explanation that this form of legislation is an ideological weapon that conservatives may use against a liberal co urt and vice versa. While this was seen during certain eras, I anticipate that similar to the Senate, there may also be an ideological explanation for court rewarding legislation in the House. In fact, as displayed in Figure 5 4, which presents the DW Nomi nate value of all sponsors of House court rewarding legislation between 1925 and 2008, a few ideological trend s by differing era can be seen. These trends indicate that at times, sponsors of this type of legislation tend to be either conservative or libera l, suggesting the possibility that ideology may play a role in House members decision to pursue court
207 rewarding activity. The reasons for these ideological trends will be discussed further in depth below. Initial Conservatism and the Switch in Time: 1925 1938 This political era witnessed a dramatic ideological shift in the House that resulted from the economic collapse of the Great Depression. T he first seven years of this period was marked by conservatism in bot h the House and the Court. I de ological con gruence between the institutions led to an informal alliance, which enabled the Court to continue to focus on advancing its laissez faire economic philosophy. The existence of this in formal alliance can be found in the observed instances of court rewarding legislation during this era As presented in Table 5 6, which displays all instances of House court rewarding legisla tion from 1925 1938, there is an all time high of thirty pieces of this type of legislation that was reported out of committee in 1925. As expected, most of these measures (23 out of 30) were sponsored by conservative Republicans, and involved attempts to expand the judiciary b y add ing judges, courts or terms for additional hearings Since the conservative House generally supported the di rection of decision making by the Court, it is not surprising that it would add new judges that were like minded in order to continue the rulings involving laissez faire policy promoted by both the House and the Court. During the next six years, while the House remained in Republican hands, the Court continued to rule conservatively. While the informal alliance stayed intact during this period, court rewarding efforts were consistently reported out of committee, as ten measures were reported in 1927, seven teen in 1928, fifteen in 1929 and seventeen in 1930. Almost all of these measures once again focused on expanding the judiciary. T he immediate response following the New Deal realignment of the House was that less
208 court rewarding legislation was reported o ut of committee. For example, there are only four measures reported out in 1931, which was followed by nine in 1932, four in 1933, and eight in 1934. This initially supports the expected trend that the House may attempt to control the Court by rewarding it less as ideological tensions grow. Yet, con trary to expectations, a revival in House court rewarding occurred in 1935, as eighteen were reported out of committee. This was followed by twelve in 1936 and twenty two in 1937. The ideological makeup of the br anches of government was still in conflict, as Congress and the Presidency were in the hands of staunch New Deal Democrats, and the Court still conservative. These trends suggest that there may be other motivating factors for the House in engaging in court rewarding behavior besides ideological conflict. One possible explanation, involves patronage politics, which was a dominant concern throughout this period of industrialization and westward migration. It is plausible that many of these bills were associa ted with growing demands for legal decision making and machine politics Since the House and President were ideologically aligned, any new judicial district or judgeship that would be created would be nominated by the President, and placed in the district of a particu lar Representative. Thus, while these administrative court rewarding measures rewards the judiciary as it lessens the administrative burden on it, it also may reward individual Representatives. This explanation coincides with the likely motivat ion of Representatives involving elector al concerns Members of Congress constantly seek re election, and often in order to do so, attempt to bring home valuable resources to their constituents. By expanding the federal judiciary, congressmen can bring some federal resources back to their
209 district. This is the same motivation for Senators engaging in this court rewarding b ehavior, except as detailed in C hapter 4, Senators are perhaps more invested in judicial selections through the advice and consent process Thus, Senators are more directly rewarding themselves in seeking an expansion in the judiciary as they are able to approve of any nominee and hence often consult with the President regarding acceptable choices. On the oth er hand, House members also play a role in the process as they approve of, and even introduce legislation that would expand the judiciary, and hence these may also be attempts to garner more res ources for their districts. Therefore even though House members are not involved in the advice and consent process, they still are involved in the expansion of the judiciary, and hence when there is ideological congruence with the President, more court rewarding attempts may result. Finally, it should be noted that t he increase in House court rewa rding legislation during opposing ideological control between the House and the Court can also be explained as partisan attempts to gain control of an institution. It is possible that these court rewarding measures that were reported out of committee durin g the latter part of as was seen in C hapter 4 As these judges have similar ideological positions as the Democrats, they would be more likely to interpret the conser way that would be more favorable to the Democrats. Whatever the precise motivation, this era was defined by a partisan shift, which was accompanied by a brief increase in court rewarding attempts. While the initial court reward ing efforts are easily understood, as conservatives were rewarding a conservative court, the pattern displayed during the latter half of this era is more difficult
210 to explain. While possible explanations include ideological attempts to expand the judiciary attempts to control the Court, and patronage concerns, the pattern displayed certainly suggests that there was some sort of relationship between the House and Court during this strained period. World War, Post War Period and the Warren Court: 1939 1969 of Congress appeared to init ially ease. This was seen in the court curbing section, as there was a brief hiatus in this hostile legislative activity. Therefore, one would anti cipate that there would be an increase in the amount of court rewarding legislation during this same period. This especially should be the case, as the complexion o f the branches of government was ideologic ally aligned, with both chambers of Congress and t he Presidency being in the hands of Democrats until 1947. With the Court ruling more in line with Congressional preferences following the court packing plan, con ditions appeared ripe for rewarding. W hile the branches were primarily in Democratic hands duri ng this era, there was still a fractured Congress, as the Democratic Party was still filled with conservatives whom often sided with Republicans. A s the Court shifted to being more liberal during the middle of this era, with Justice Warren becoming chief, the possibility for increased tension appeared. This is especially the case as the Court shifted its rulings into deciding more cases involving civil rights and liberties, such as Brown v. Board of Education (1954). As detailed in the court curbing section s, the House and Senate responded by reporting out increasing amounts of court curbing legislation. In addition, the Senate appeared to respond by adding more conservative lower federal judges,
211 which may have been motivated by the incre asingly liberal ruli ngs. T of court rewarding in this instance showed signs of being motivated by ideology, and sympathetic towards their views, especially on controversial issue s such as desegregation. The Hous e on the other hand, display ed a different pattern. As presen ted on Table 5 7, which presents all court rewarding bills reported out of committee from 1939 1969, the court rewarding attempts are sporadic throughout this era. Similar to the Senate, the complexion of most of these court rewarding measures were administrative in nature, and attempted to expand the judiciary and maintain the capacity to hear cases adequate for an emerging world order. However, unlike the Sena te, the introduction of this type of legislation did not appear to be used as a potential ideological weapon in the struggle between the branches. For instance, court rewarding was primarily a Democratic phenomenon in the Senate. However, as the Court con tinued to render more liberal rulings, conservatives finally used this form of legislation to create new judicial districts and judgeships in response. This was particularly seen in 1957, which may have been a response to ing the scope of Congressional investigations as previously detailed. Thus, while almost all of the court rewarding measures were sponsored by Democrats, 1957 marked a shift which was likely explained by hostility between the branches. This was similar to the pattern observed in 1935, in which Democrats sponsored a large amount of administrative court rewarding measures while there was a conservative Court.
212 This same pattern did not appear in the House. While there was a large amount o f court rewarding mea sures reported out of committee in 1957, the sponsors were almost all liberal Democrats. This was a consistent pattern throughout this era, with Democrats primarily sponsoring this type of legislation. Thus, ideology may in fact play a role in the introduc tion of this form of legislation, as House Democrats were consistently rewarding an increasingly more liberal Court. This is seen through increases in rewarding measures later in this era. W hile there were more court rewarding efforts reported out of comm ittee before Warren became chief justice, these same efforts were reasonably stead y following his confirmation and the controversial ruling s in Brown and Watkins as seen with eleven court rewarding measures in 1957, eight in 1961, and ten in 1962. Thus, t hese measures may be actual efforts to reward the Court for its path of judicial decision making, as opposed to ideological attempts to control the Court. Some may question this explanation, since there was clear hostility and disagreement between the bra nches during this era following the confirmation o f Warren as Chief Justice. O ther potential explanations may therefore provide a better account for the occurrence of this type of legislation during this era. First, as previously detailed, it is possible that these measures are in fact non ideological, and rather represent attempts by individual House members to garner more federal resources for their particular districts. The court r ewarding measures may be motivated by electoral politics, as House member s seek valuable fe deral resources for themselves. I t is possible that these measures were also actual attempts to provide administrative support to the judiciary. Unlike the ideological and traditional rewarding
213 accounts previously presented, this explana tion simply provides that the lower courts may have been in need of restructuring as many judicial districts may have become too crowded. In support of this explanation, it is noteworthy that the chairman of the House judiciary committee played a critical role in these bills during the latter half of this era. More specifically, Representative Celler (D NY) sponsored nearly sixty percent of these bills from 1955 1969. This suggests that the chairman may have been concerned about the administrative capacit y of the courts, and hence may have truly been attempting to expand the court for non ideological reasons. This same pattern did not occur earlier in this era, nor did it occur in the Senate. Therefore, the House, but more particularly the judiciary chairm an, may have been motivated by efficiency concerns regarding the judiciary. Increasing Inter branch Dispute From Burger to Roberts: 1970 2008 The final era was marked by an increasingly conservative Court, with first Burger replacing Warren as Chief J ustice, and later Rehnquist being confirmed. The House, on the other hand, remained under Democratic control for most of this era, with Republicans later gaining control in 1995. The Presidency also alternated partisan control over this era, which partiall y explains the increasing tension that occurred between the branches during this time frame. The increasing tension was particularly seen in instances of court curbing legislation, which dramatically increased over this era. One would anticipate therefore that instances of court rewarding legislation would exhibit the opposite p attern. As presented in Table 5 8, which displays all instances of court rewarding behavior from 1970 2008, wi th the exception of 1991, a general declining pattern of instances of this type of legislation reported out of a House committee was observed during this era.
214 Based on a cursory review of these bills, one can immediately notice that there are several trends regarding this form of legislation. First, and as also seen in the Senate, while there are some administrative court rewarding attempts to expand judgeships and c ourts seen during the late 1970 s and early 1980 s, most of this era is actually defined by other court re warding efforts These include several studies to impro ve judicial efficiency, and also attempts to create new venues for litigation, such as medi ation or arbitration, which are often included in bills involving copyright or other issues. The shift in the type of court rewarding legislation is noteworthy, and initially does not appear to be motivated by ideology, as the decline in efforts to expand the judiciary was seen with both Democratic and Republican controlled Congresses. This is likely explained by maturation of the federal judiciary, as its administrat ive capacity became large enough to decrease the docket and caseload to manageable levels. Thus, there may have no longer been a need to expand the judiciary, as it was able to adequately handle the number of cases occurring in each district. The decline i n administrative court rewarding may also be explained by party construct and polarization. As the parties grew more ideologically cohesive, both sides may attempt to add federal judges to the bench. Yet, the parties would be more reluctant than in the pas t to add these judges during times of divided government. The cohesive nature of the parties would suggest that each would be reluctant to expand the judiciary during times when the President from the opposing party would make the nomination. This explains why following 1981, Democrats utilized this form of legislation less to expand the judiciary, which in the past they showed no hesitation in doing so
215 Furthermore, following the Republican Revolution in 1994, there were few attempts by the Republicans dur ing the Clinton administration to expand the bench. While these examples show that the changing party structure may have altered legislative behavior, the decline in administrative court rewarding may also be explained by Republican control in the House. Unlike the Democrats, who frequently used this form of legislation in the past, Republicans avoided this tactic, even when the executive branch was ideologically aligned. In fact, there were only two attempts to expand the judiciary by the Republican contr olled House during the Presidency of George W. Bush. Thus, expanding the judicial bench may simply not be a priority of many modern conservatives. N ot only did administrative court rewarding decline during this era, but similar to the Senate, so too did o verall court rewarding efforts. The fact that there was a declining trend in this type of legislation, which corresponds to an increasing court curbing trend suggests that there was increased tension between the branches. This increased tension was even se en with the decline in court rewarding efforts by conservatives with the conservative Court. As seen with the Court curbing efforts, conservatives were particularly hostile toward the conser vative C ourt during and following the Republican Revolution. This is contrary to expectations, and once again reveals hostility of conservatives toward the judiciary in general. This outcome may be explained in principal agent terms, as this hostility may simply be translated and explained in terms of control. Whereas c ourt curbing legislation clearly marks hostile attempts to sanction the Court when its preferences conflict with Congressional goals, court rewarding legislation may also be doing the opposite. For
216 instance, the decline in court rewarding legislation may i ndicate Congressional preferences by notifying the Court that it disagrees with its path of decision making. Hence, the House may reward the Court less during more tense times, which corresponds to times when it seeks to control the Court through sanctions Thus, rewards may be used during times of institutional agreement, and the opposite pattern results during times of hostility. From a party perspective however, Democrats seemed more likely to use court rewarding legislation more often over time and he nce may have attempted to control the Court through this form of legislation. Modern conservative Republicans on the other hand, tend to attempt to control the judiciary through sanctions rather than incentives. This was seen in the drastic increase in the usage of court curbing legislation, and the corresponding decrease in court rewarding legislation following the Republican Revolution. Finally, and as suggested with the Senate court rewarding results, the declining trend in court rewarding legislation m ay also be explained by electoral politics. Whereas it may have been electorally advantageous to pursue attacks on the Court during this time, it likewise would be unpopular to seek policy rewarding or expanding the federal judiciary. This is especially th e case if the Court is deci ding disputes that are socially divisive which as mentioned in the section involving court curbing, the Court was deciding such issues that include flag burning, school prayer, the pledge of allegiance and gay marriage. Clearly as these issues are divisive, House members sought policy conservative in the past several decades, it still was rendering rulings that were contrary
217 to the preferences of many Ho use members, and hence less court rewarding legislation resulted. Underlying Motivations, Results and Court Rewarding Trends Several patterns have been observed and discussed in the past several sections involving House court rewarding legislation. While these patterns have provided some this legislative behavior, there are still several additional possible motivations that should be explored. This section will therefore provide a falsifiable account regarding the possible motivations behind House court rewarding behavior. In order to engage in a proper analysis to determine whether and to what extent particular factors motivate court rewarding legislation in the House, t he same analysis will be conducted as was completed with Senate court rewarding. However, similar to the Senate, some may question the extent to which the same motivating factors account for certain types of court rewarding behavior. For example, one may w onder whether House members are motivated by the same factors in deciding whether to expand the Court as they are when they engage in other court rewarding behavior such as increasing salaries of judicial members Therefore, three individual analyses will be conducted regarding court rewarding legislation. The first examines all court rewarding efforts, with the final two analyses segregating the overall measures into administrative and non administrative efforts. First, with regard to the overall instanc es of court rewarding behavior, with one exception, it does not appear that the House is motivated by the factors previously iden tified. As indicated on Table 5 9, which display the negative binomial estimation results from the House court rewarding measur es reported out of committee from 1925
218 2006, the only variable achieving statistical significance was the United States Supreme Court dissent rate The results were negative indicating that as the Court decided more disputes with dissenting opinions, the House rewarded it less. This result was anticipated, as it is possible that as the Court becomes more divided the Court may be handing down rulings that are more controversial and divisive. These issues are likely to not only divide the justices themsel ves, but peopl e throughout the country. House members, who are concerned about being reelected, obviously pursue policy that their constituents favor. When the populace is divided, along with the Court, it is likely not electorally advantageous for House m embers to seek policy re warding a divided Court Furthermore, it is possible that the House is trying to control the Court through incentives. As the Court becomes more unanimous in its rulings, the House responds by rewarding it more. Deciding cases in a more united way may indicate agreement between the branches, as House members and the Court may not be divided on various issues. In turn, the House may reward the Court in an effort to keep the Court deciding disputes in a similar manner. The remaining v ariables were not significant, indicating that the House does not appear to be motivated by judicial review, agenda items, polarization or ideological institutional distance, or divided government in its determination of whether to reward the Court. With t he exception of polarization, similar null results were obtained for the Senate. When the results are segregated and divided between expansionary bills and non administrative rewarding measures, some slightly different results are obtained. While the resu lts regarding the dissent rate carry over as a potential explanation,
219 several additional variables also achieved significance, which can be seen on Table 5 10, which display the negative binomial regression estimates from 1925 2006 for the administrative court rewarding bills. These additional significant variables support the results observed in the prior sections involving court rewarding by era which attribute the expansion of the federal bench to party construct. First, the significance of the polari zation variable which was negative, indicates that fewer attempts were reported out of committee to expand the federal judiciary as the political parties were growing more polarized. This result was expected, and opposite to the significant results for Ho use court curbing involving polarization. The transformation of the political parties obviously played a role, as after the Republicans gained control, they pursued divisive policy on social issues that targeted their electoral base. The pursuit of these i ssues divided the parties further, which in turn led to more court curbing attempts by the House, and less attempts to expand the judiciary. This explanation involving the party construct is further bolstered when one considers the near significant result s involving divided government, which is also negative. This result suggests that during times of divided government, the House is less likely to report out legislation expanding the federal bench. This supports the observations regarding the last politica l era under analysis, as the overall instances of administrative court rewarding declined. This decline occurred during times when there was divided government, in which Democrats decreased their efforts to expand the bench under Reagan, and likewise Repub licans did the same under Clinton. Since the President nominates the potential nominee, it is understandable why House members of
220 a more ideologically cohesive party would be reticent to permit a President of the opposite party to fill new judicial positio ns. In the final model, the remaining court rewarding bills that exclude the expansionary ones were examined with the results displayed in Table 5 11 Unlike the other models, none of the variables achieved significance W hile party construct was t he lik ely explanation for expanding the Court, there does not appear to be any similar motivation regarding these types of bills. Conclusions on House Court Rewarding Several trends were observed regarding court rewarding attempts in the House. First, there was a declining pattern noticed over time, especially during the final era under analysis. This contrasts with the observations made regarding instances of House court curbing legislation, which experienced a drastic increase during the same period. As expect ed, this general observation suggests that there may be an opposing relationship between these two forms of legislation. The primary results involving court rewarding legislation was obtained for instances that expanded the bench. However, this form of leg islation also decreased during the last era under analysis. In order to explain these results, the structure of the political parties is critical, as polarization and divided government appear to be the primary culprits in causing these trends. As the part ies grew more ideologically cohesive, more political polarization occurred, with the parties dividing on substantive issues. One result from this polarization was a decrease in attempts to expand the bench. In addition, divided government was prevalent dur ing most of the years when polarization was increasing, which supports the underlying rationale for a decrease in
221 expanding the judiciary. After all, an ideologically cohesive House would be reticent to permit a President from the opposing party to nominat e or add new federal judgeships. The general observations also reinforce the party structure explanation, as the political parties themselves approached the relationship with the Court in different ways. Expanding the judiciary was primarily a Democratic phenomenon during the first two eras. However, this trend declined during the third era, and once Republicans gained control of the House, they halted most administrative court rewarding efforts. While divided government may explain the lack of Republican efforts to initially expand the Court, the explanation is incomplete, as the Republicans did not increase their behavior during a unified government. Thus, the new conservative Republican Party found it more effective to engage the Court through hostile me asures, as opposed to rewarding or expanding it. Conclusion As observed in Chapter 4 involving the Senate, the results obta ined for the House and the judiciary displays a complex relationship between these branches that is likely the result of att empts by the House to control the Court. These attempts occurred following the bargain entered into between these institutions, as the House granted the Court great discretion in choosing its own docket. The House appeared to continually monitor the Court throughout the time frame examined in this chapter to ensure that it was acting in accordance with its preferences. However, as the institutions displayed different goals at times, the House responded by introducing and reporting out legislation designed to alter judicial behavior. One method that the House uses in an attempt to control the judiciary is court curbing legislation. Unlike the Senate, which appeared to use this form of legislation to
222 preserve the institution of Congress, the House appears to be motivated by electoral factors. More specifically, House members are agenda and polarization in seeking this form of policy. Clearly, as House members constantly seek reelection, they pursue policy that is congruent wi th their constituent preferences. As the Court delved into controversial issues, such as civil rights and liberties, the House responded with more court curbing legislation. In addition, the oral concerns, as they seek this type of policy during more polarized time frames. This suggests that it may be electorally advantageous to pursue attacks on the Court during highly politically charged time frames, which may especially be the case if the C ourt is handing down controversial rulings. Another finding that suggests that the House was motivated by electoral politics in its pursuit of court curbing legislation is the types of court curbing attempts. Whereas the Senate responded to institutional threats and curbed minor issues, such as banking, the House appeared to pander more to constituents by reporting out legislation that was socially divisive. This includes issues such as flag burning and gay marria ge. While the House also report ed out some measures involving minor issues, it is noteworthy that Congressmen were more willing to tackle these controversial issues, especially during more polarized eras. There are some similarities between the House and the Senate involving patterns that were disc overed involving court curbing. First, the overall instances of this form of legislation increased over time. In addition, conservatives were attacking conservatives toward the latter part of the analysis. This is substantively an interesting
223 finding, as i t suggests that perhaps the conservative Court was not ruling conservative enough for House members. After all, in a highly polarized era, House members are while d district. The House also appears to control the Court through court rewarding legislation. During the first two eras, these attempts were largely based on expanding the lower leve l judiciary, with the attempts shifting toward other forms of court rewarding behavior in the last era. Similar to the Senate, court rewarding efforts appear to be motivated by the dissent rate of the Supreme Court. In addition, polarization appeared to pl ay a role in the decision to add courts and judgeships. Both of these results appear to support the court curbing results, as House court rewarding appears to be motivated by electoral pol itics as well. A s the Court grew more divided by issuing more opinio ns with dissents, less court rewarding resulted. This suggests that the Court was likely resolving difficult and divisive disputes, and as it generated dissent amongst them, it also may have generated dissent among the population. As House members seek pol icy congruent constituents. Likewise, polarization appears to affect the House, as Congressmen seek to expand the courts less during times of greater polarization. This is the opposite pattern as found in court curbing, and likely is the result of House members continuing to be concerned about reelection.
224 Figure 5 1 House c ourt c urbing b ills r eported o ut of c ommittee by y ear, 1925 2008 Figure 5 2 DW n o minate v alue of r epresent atives s ponsoring c ourt c urbing l egislation and the m ean DW n ominate v alue of the m ajority p arty in the House of Representatives
225 Figure 5 3. House c ourt r ewarding b ills r eported o ut of c ommittee by y ear, 1925 2010 Figure 5 4 DW n ominate v alue of r epresentatives s ponsoring c ourt r ewarding l egislation and the m ean DW n ominate v alue of the m ajority p arty in the House of Representatives
226 Table 5 1 House c ourt c urbing b ills r eported out of c ommittee, 1925 1938 Bill type Bi ll number Year introduced Court curbing t ype Issue HJR 347 1925 Impeachment/Removal HJR 425 1929 Impeachment/Removal HJR 431 1929 Impeachment/Removal HR 5315 1931 Jurisdiction Labor Issues HR 6178 1937 Judicial Review Habeas Corpus HR 8854 1938 Abolishes Judicial District Table 5 2 House c ourt c urb ing b ills r eported out of c ommittee, 1939 1969 Bill type Bill number Year introduced Court Curbing Type Issue HR 6167 1939 Abolishes Judicial District HR 2157 1947 Judicial Review Labor I ssues HR 5992 1948 Federalism HR 5678 1951 Judicial Review Immigration HR 1070 1953 Judicial Review HR 9728 1954 Judicial Review Agency Rule Making HR 5130 1955 Abolishes Judicial District HR 6991 1955 Judicial Review Agency Rule Making HR 9 85 1957 Age Limits/Retirement HR 13311 1958 Judicial Review Immigration HR 2807 1959 Judicial Review Immigration HJR 450 1959 Taxation HR 187 1961 Judicial Review Immigration HR 11520 1964 Jurisdiction Evidence
227 Table 5 3 House c ourt c urbing b ill s r eported out of c ommittee, 1970 2008 Bill type Bill number Year introduced Court curbing t ype Issue HR 11656 1976 Judicial Review Agency Rule Making HR 11370 1978 Judicial Review Social Security HR 10965 1978 Judicial Rev iew Commerce HR 111 1979 Judicial Review Trade HR 1716 1979 Judicial Review Trade HR 3263 1979 Judicial Review Agency Rule Making HR 1799 1981 Judicial Review Trade HR 746 1981 Judicial Review Agency Rule Making HR 6514 1982 Judicial Revi ew Immigration HR 6128 1982 Judicial Review Agency Rule Making HR 1510 1983 Judicial Review Immigration HR 2867 1983 Judicial Review Environment HR 3810 1985 Judicial Review Immigration HR 2817 1985 Judicial Review Agency Rule Making H R 1115 1987 Jurisdiction Consumer Protection HR 4379 1988 Judicial Review Immigration HR 5288 1988 Judicial Review US Employees HR 2929 1989 Judicial Review Immigration HR 2806 1989 Judicial Review Crime HJR 350 1989 Case Flag Burning H R 2978 1989 Case Flag Burning HR 1278 1989 Judicial Review Banking and Fraud HR 743 1989 Judicial Review Agency Rule Making HR 5401 1990 Judicial Review Banking and Fraud HR 4956 1990 Judicial Review Business HR 3371 1991 Judicial Review Cr ime HR 1 1991 Equal Rights HR 6 1991 Judicial Review Business HR 1537 1991 Judicial Review Business HR 4563 1992 Jurisdiction Tort Reform HR 4312 1992 Judicial Review Voting Rights HR 3355 1993 Judicial Review Crime HR 3600 1993 Judicia l Review Health Care HR 1308 1993 Judicial Review Religious Freedom HR 3392 1993 Judicial Review Environment HR 1758 1993 Judicial Review Business HR 4032 1994 Judicial Review Death Penalty HR 4781 1994 Judicial Review Anti Trust HR 3937 1994 Judicial Review Exports/Imports
228 Table 5 3. Continued Bill type Bill number Year introduced Court curbing t ype Issue HR 5110 1994 Judicial Review Trade HR 668 1995 Judicial Review Immigration HR 2202 1995 Judicial Review Immigration HJR 79 1995 Case Flag Burning HR 2425 1995 Judicial Review Health Care HR 956 1995 Judicial Review Tort Reform HR 1710 1995 Judicial Review Terrorism HR 1528 1995 Anti Trust HR 1555 1995 Anti Trust HR 4 1995 Judicial Review Unemployment HR 9 1995 Judicial Review Unemployment HR 994 1995 Judicial Review Agency Rule Making HR 3452 1996 Judicial Review Civil Rights HR 3103 1996 Judicial Review Health Care HR 3460 1996 Judicial Review Copyright HR 3 1997 Judicial Review Crime HJR 54 1997 Case Flag Burning HJR 78 1997 Case School Prayer HR 1965 1997 Judicial Review Personal Property HR 400 1997 Judicial Review Copyright HR 872 1997 Jurisdiction Tort Reform HR 2431 1997 Judicial Review Religious Freedom HR 695 19 97 Judicial Review Exports/Imports HR 1252 1997 Judicial Review Evidence HR 1544 1997 Judicial Review Agency Rule Making HR 4006 1998 Other Crime HJR 119 1998 Judicial Review Campaign Spending HR 3829 1998 Judicial Review National Security HJR 33 1999 Case Flag Burning HR 1452 2001 Judicial Review Immigration HJR 36 2001 Case Flag Burning HR 1577 2001 Judicial Review Business HR 2068 2001 Judicial Review Public land HR 3892 2002 Judicial Review HR 3995 2002 Judicial Review Affordable Housing HJR 4 2003 Case Flag Burning HR 10 2003 Judicial Review Terrorism HR 2028 2003 Jurisdiction Pledge of Allegiance
229 Table 5 3. Continued Bill type Bill number Year introduced Court Curbing Type Issue HR 2844 2003 Judicial Revi ew Appointment of Reps HR 3313 2003 Jurisdiction Gay Marriage HR 3036 2003 Judicial Review Law Enforcement HR 1829 2003 Judicial Review Business HR 5107 2004 Judicial Review Crime HR 1279 2005 Judicial Review Crime HJR 10 2005 Case Sch ool Prayer HR 4128 2005 Personal Property HR 4437 2005 Judicial Review Terrorism HR 2965 2005 Judicial Review Business HR 1461 2005 Jurisdiction Business HR 6054 2006 Jurisdiction HR 4772 2006 Personal Property HR 3887 2007 Judicial Review C rime HR 2831 2007 Judicial Review Civil Rights HR 3195 2007 Judicial Review Civil Rights
230 Table 5 4 House a dministrative c ourt c urbing b ills r eported out of c ommittee, 1925 2008 Bill type Bill number Year introduced Cou rt Curbing Type Issue HR 2157 1947 Judicial Review Labor Issues HR 5678 1951 Judicial Review Immigration HR 1070 1953 Judicial Review HR 9728 1954 Judicial Review Agency Rule Making HR 6991 1955 Judicial Review Agency Rule Making HR 13311 1958 Judicial Review Immigration HR 2807 1959 Judicial Review Immigration HR 187 1961 Judicial Review Immigration HR 11656 1976 Judicial Review Agency Rule Making HR 11370 1978 Judicial Review Social Security HR 111 1979 Judicial Review T rade HR 1716 1979 Judicial Review Trade HR 3263 1979 Judicial Review Agency Rule Making HR 1799 1981 Judicial Review Trade HR 6514 1982 Judicial Review Immigration HR 6128 1982 Judicial Review Agency Rule Making HR 1510 1983 Judicial Revie w Immigration HR 2867 1983 Judicial Review Environment HR 3810 1985 Judicial Review Immigration HR 2817 1985 Judicial Review Agency Rule Making HR 4379 1988 Judicial Review Immigration HR 5288 1988 Judicial Review US Employees HR 2929 1989 Judicial Review Immigration HR 2806 1989 Judicial Review Crime HR 1278 1989 Judicial Review Banking and Fraud HR 743 1989 Judicial Review Agency Rule Making HR 5401 1990 Judicial Review Banking and Fraud HR 4956 1990 Judicial Review Business HR 3371 1991 Judicial Review Crime HR 6 1991 Judicial Review Business HR 1537 1991 Judicial Review Business HR 4312 1992 Judicial Review Voting Rights HR 3355 1993 Judicial Review Crime HR 3392 1993 Judicial Review Environmen t HR 1758 1993 Judicial Review Business HR 4032 1994 Judicial Review Death Penalty HR 4781 1994 Judicial Review Anti Trust HR 3937 1994 Judicial Review Exports/Imports
231 Table 5 4. Continued Bill type Bill number Year introduced Court curbing t ype Issue HR 5110 1994 Judicial Review Trade HR 2425 1995 Judicial Review Health Care HR 1710 1995 Judicial Review Terrorism HR 4 1995 Judicial Review Unemployment HR 9 1995 Judicial Review Unemployment HR 994 1995 Judicial Review Agenc y Rule Making HR 3460 1996 Judicial Review Copyright HR 3 1997 Judicial Review Crime HR 1965 1997 Judicial Review Personal Property HR 400 1997 Judicial Review Copyright HR 2431 1997 Judicial Review Religious Freedom HR 695 1997 Judicial R eview Exports/Imports HR 1544 1997 Judicial Review Agency Rule Making HR 3829 1998 Judicial Review National Security HR 1452 2001 Judicial Review Immigration HR 1577 2001 Judicial Review Business HR 2068 2001 Judicial Review Public land HR 3892 2002 Judicial Review HR 3995 2002 Judicial Review Affordable Housing HR 1829 2003 Judicial Review Business HR 5107 2004 Judicial Review Crime HR 1279 2005 Judicial Review Crime HR 4437 2005 Judicial Review Terrorism HR 2965 2005 J udicial Review Business HR 3887 2007 Judicial Review Crime
232 Table 5 5 Negative b inomial e stimation r esults for House c ourt c urbing b ills r eported o ut of c ommittee by y ear, 1925 2006 Variable Coefficient (Standard Error) P Value Judici al Review .05 (.07) .44 Supreme Court Dissent Rate .01 (.01) .38 Criminal Landmarks .12 (.10) .24 Civil Liberties Landmarks .21 (.08) .01 Economic Landmarks .17 (.13) .19 Institutional Power Landmarks .25 (.15) .09 Original Jurisdiction Landmark s .01 (.32) .98 Polarization 6.37 (1.38) .00 Ideological Institutional Distance .01 (.01) .32 Divided Government .15 (.27) .59 Constant 5.15 (1.15) .00 .09 N 82 Residual Test .06 (.11) .57 Durbin Watson (Original) 1.91
233 Tab le 5 6 House c ou rt r ewarding b ills r eported out of c ommittee, 1925 1938 Bill type Bill number Year introduced Court rewarding type Issue HR 290 1925 Adding Judges/Courts/Terms HR 376 1925 Adding Judges/Courts/Terms HR 3745 1925 Adding Judges/Court s/Terms HR 3834 1925 Adding Judges/Courts/Terms HR 3932 1925 Adding Judges/Courts/Terms HR 3934 1925 Adding Judges/Courts/Terms HR 5006 1925 Adding Judges/Courts/Terms HR 5564 1925 Staff/Materials HR 5701 1925 Adding Judges/Courts/Terms HR 6730 1925 Adding Judges/Courts/Terms HR 7378 1925 Adding Judges/Courts/Terms HR 7616 1925 Adding Judges/Courts/Terms HR 7907 1925 Salary/Miscellaneous expenses HR 8126 1925 Adding Judges/Courts/Terms HR 8657 1925 Staff/Materials HR 9043 1925 Adding Judges/Cou rts/Terms HR 9305 1925 Adding Judges/Courts/Terms HR 9829 1925 Adding Judges/Courts/Terms HR 10055 1925 Adding Judges/Courts/Terms HR 10554 1925 Salary/Miscellaneous expenses HR 10595 1925 Adding Judges/Courts/Terms HR 10611 1925 Adding Judges/Courts /Terms HR 10665 1925 Adding Judges/Courts/Terms HR 10821 1925 Adding Judges/Courts/Terms HR 10936 1925 Adding Judges/Courts/Terms HR 11053 1925 Salary/Miscellaneous expenses HR 11123 1925 Adding Judges/Courts/Terms HR 11354 1925 Adding Judges/Courts/ Terms HR 11826 1925 Adding Judges/Courts/Terms HR 12343 1925 Adding Judges/Courts/Terms HR 14831 1926 Adding Judges/Courts/Terms HR 15538 1926 Adding Judges/Courts/Terms HR 5774 1927 Adding Judges/Courts/Terms HR 6057 1927 Adding Judges/Courts/Terms HR 6687 1927 Exports/Imports/Customs HR 8229 1927 Adding Judges/Courts/Terms HR 8295 1927 Adding Judges/Courts/Terms
234 Table 5 6. Continued Bill type Bill number Year introduced Court rewarding type Issue HR 16171 1927 Adding Judges/Courts/Terms H R 16206 1927 Adding Judges/Courts/Terms HR 16222 1927 Adding Judges/Courts/Terms HR 17038 1927 Adding Judges/Courts/Terms HR 17091 1927 Adding Judges/Courts/Terms HR 8551 1928 Adding Judges/Courts/Terms HR 8835 1928 Adding Judges/Courts/Terms HR 9024 1928 Staff/Materials HR 9051 1928 Salary/Miscellaneous expenses HR 9054 1928 Staff/Materials HR 9055 1928 Adding Judges/Courts/Terms HR 9142 1928 Adding Judges/Courts/Terms HR 9200 1928 Adding Judges/Courts/Terms HR 10431 1928 Adding Judges/Courts/T erms HR 11139 1928 Adding Judges/Courts/Terms HR 11463 1928 Salary/Miscellaneous expenses HR 12036 1928 Adding Judges/Courts/Terms HR 12351 1928 Adding Judges/Courts/Terms HR 12811 1928 Adding Judges/Courts/Terms HR 13116 1928 Adding Judges/Courts/Te rms HR 14659 1928 Adding Judges/Courts/Terms HR 14931 1928 Adding Judges/Courts/Terms HR 185 1929 Adding Judges/Courts/Terms HR 969 1929 Staff/Materials HR 2903 1929 Adding Judges/Courts/Terms HR 5411 1929 Adding Judges/Courts/Terms HR 5624 1929 Add ing Judges/Courts/Terms HR 6344 1929 Adding Judges/Courts/Terms HR 6347 1929 Adding Judges/Courts/Terms HR 6806 1929 Adding Judges/Courts/Terms HR 7118 1929 Adding Judges/Courts/Terms HR 7587 1929 Staff/Materials HR 7643 1929 Adding Judges/Courts/Ter ms HR 7822 1929 Salary/Miscellaneous expenses HR 7926 1929 Adding Judges/Courts/Terms HR 16034 1929 Adding Judges/Courts/Terms
235 Table 5 6. Continued Bill type Bill number Year introduced Court rewarding type Issue HR 16167 1929 Staff/Materials HR 16658 1929 Adding Judges/Courts/Terms HR 9045 1930 Adding Judges/Courts/Terms HR 9590 1930 Adding Judges/Courts/Terms HR 9601 1930 Adding Judges/Courts/Terms HR 10044 1930 Adding Judges/Courts/Terms HR 11050 1930 Adding Judges/Courts/Terms HR 11622 1 930 Adding Judges/Courts/Terms HR 11623 1930 Adding Judges/Courts/Terms HR 11967 1930 Adding Judges/Courts/Terms HR 11971 1930 Adding Judges/Courts/Terms HR 12032 1930 Adding Judges/Courts/Terms HR 12059 1930 Adding Judges/Courts/Terms HR 12095 1930 Adding Judges/Courts/Terms HR 12307 1930 Adding Judges/Courts/Terms HR 12347 1930 Adding Judges/Courts/Terms HR 12350 1930 Adding Judges/Courts/Terms HR 12842 1930 Adding Judges/Courts/Terms HR 14055 1930 Adding Judges/Courts/Terms HR 4709 1931 Addin g Judges/Courts/Terms HR 5342 1931 Adding Judges/Courts/Terms HR 6304 1931 Adding Judges/Courts/Terms HR 6456 1931 Adding Judges/Courts/Terms HR 8577 1932 Adding Judges/Courts/Terms HR 9259 1932 Adding Judges/Courts/Terms HR 9306 1932 Adding Judges/C ourts/Terms HR 10277 1932 Adding Judges/Courts/Terms HR 10641 1932 Studies to improve judicial efficiency HR 11336 1932 Adding Judges/Courts/Terms HR 11390 1932 Adding Judges/Courts/Terms HR 11676 1932 Adding Judges/Courts/Terms HR 13655 1932 Adding Judges/Courts/Terms HR 1617 1933 Adding Judges/Courts/Terms HR 3664 1933 Adding Judges/Courts/Terms HR 5909 1933 Adding Judges/Courts/Terms HR 14359 1933 Bankruptcy HR 6136 1934 Adding Judges/Courts/Terms
236 Table 5 6. Continued Bill type Bill number Year introduced Court rewarding type Issue HR 6478 1934 Adding Judges/Courts/Terms HR 6550 1934 Adding Judges/Courts/Terms HR 7356 1934 Studies to improve judicial efficiency HR 7524 1934 Adding Judges/Courts/Terms HR 9437 1934 Adding Judges/Courts/ Terms HR 9458 1934 Adding Judges/Courts/Terms HR 9948 1934 Adding Judges/Courts/Terms HR 12 1935 Adding Judges/Courts/Terms HR 157 1935 Adding Judges/Courts/Terms HR 1414 1935 Adding Judges/Courts/Terms HR 3043 1935 Adding Judges/Courts/Terms HR 466 5 1935 Adding Judges/Courts/Terms HR 5161 1935 Salary/Miscellaneous expenses HR 5227 1935 Adding Judges/Courts/Terms HR 5573 1935 Adding Judges/Courts/Terms HR 5917 1935 Adding Judges/Courts/Terms HR 6114 1935 Adding Judges/Courts/Terms HR 6376 1935 Adoption HR 7050 1935 Adding Judges/Courts/Terms HR 7057 1935 Adding Judges/Courts/Terms HR 7374 1935 Adding Judges/Courts/Terms HR 7955 1935 Adding Judges/Courts/Terms HR 8657 1935 Adding Judges/Courts/Terms HR 8668 1935 Adding Judges/Courts/Terms HR 9244 1935 Adding Judges/Courts/Terms HR 11072 1936 Adding Judges/Courts/Terms HR 11098 1936 Adding Judges/Courts/Terms HR 11217 1936 Adding Judges/Courts/Terms HR 11614 1936 Adding Judges/Courts/Terms HR 11926 1936 Adding Judges/Courts/Terms HR 11 994 1936 Adding Judges/Courts/Terms HR 12162 1936 Adding Judges/Courts/Terms HR 12329 1936 Salary/Miscellaneous expenses HR 12557 1936 Adding Judges/Courts/Terms HR 12737 1936 Adding Judges/Courts/Terms HR 12796 1936 Adding Judges/Courts/Terms HR 128 48 1936 Adding Judges/Courts/Terms
237 Table 5 6. Continued Bill type Bill number Year introduced Court rewarding type Issue HR 169 1937 Adding Judges/Courts/Terms HR 2271 1937 Power to Remove judges HR 2297 1937 Adding Judges/Courts/Terms HR 2518 193 7 Salary/Miscellaneous expenses HR 2703 1937 Studies to improve judicial efficiency HR 2708 1937 Adding Judges/Courts/Terms HR 2709 1937 Adding Judges/Courts/Terms HR 2905 1937 Adding Judges/Courts/Terms HR 3284 1937 Adding Judges/Courts/Terms HR 341 1 1937 Adding Judges/Courts/Terms HR 3493 1937 Adding Judges/Courts/Terms HR 4605 1937 Adding Judges/Courts/Terms HR 4795 1937 Adding Judges/Courts/Terms HR 5963 1937 Adding Judges/Courts/Terms HR 6208 1937 Adding Judges/Courts/Terms HR 6358 1937 Add ing Judges/Courts/Terms HR 6907 1937 Adding Judges/Courts/Terms HR 7092 1937 Adding Judges/Courts/Terms HR 8046 1937 Adding Judges/Courts/Terms HR 8125 1937 Adding Judges/Courts/Terms HR 8565 1937 Staff/Materials HR 8700 1937 Salary/Miscellaneous exp enses HJR 715 1938 Salary/Miscellaneous expenses HR 8794 1938 Adding Judges/Courts/Terms HR 9043 1938 Salary/Miscellaneous expenses HR 9468 1938 Adding Judges/Courts/Terms HR 9789 1938 Studies to improve judicial efficiency HR 10014 1938 Adding Judge s/Courts/Terms
238 Table 5 7 House c ourt r ewarding b ills r eported out of c ommittee, 1939 1969 Bill type Bill number Year introduced Court rewarding type Issue HR 1652 1939 Adding Judges/Courts/Terms HR 2566 1939 Studies to improve judicial e fficiency HR 5292 1939 Salary/Miscellaneous expenses HR 5906 1939 Adding Judges/Courts/Terms HR 5939 1939 Power to Remove judges HR 5999 1939 Studies to improve judicial efficiency HR 6135 1939 Adding Judges/Courts/Terms HR 6672 1939 Adding Judges/Co urts/Terms HR 7015 1939 Salary/Miscellaneous expenses HR 7079 1939 Adding Judges/Courts/Terms HR 7294 1939 Adding Judges/Courts/Terms HR 7421 1939 Adding Judges/Courts/Terms HR 7634 1940 Staff/Materials HR 7811 1940 Adding Judges/Courts/Terms HR 837 3 1940 Adding Judges/Courts/Terms HR 9013 1940 Adding Judges/Courts/Terms HR 9122 1940 Adding Judges/Courts/Terms HR 9531 1940 Adding Judges/Courts/Terms HR 137 1941 Adding Judges/Courts/Terms HR 138 1941 Adding Judges/Courts/Terms HR 141 1941 Salary /Miscellaneous expenses HR 146 1941 Power to Remove judges HR 2596 1941 Adding Judges/Courts/Terms HR 3390 1941 Adding Judges/Courts/Terms HR 5481 1941 Adding Judges/Courts/Terms HR 6270 1941 Adding Judges/Courts/Terms HR 6618 1942 Adding Judges/Cour ts/Terms HR 6702 1942 Adding Judges/Courts/Terms HR 6951 1942 Adding Judges/Courts/Terms HR 7121 1942 Bankruptcy HR 7211 1942 Staff/Materials HR 7356 1942 Staff/Materials HR 7738 1942 Adding Judges/Courts/Terms HR 7810 1942 Adding Judges/Courts/Term s HR 7814 1942 Staff/Materials HR 1622 1943 Adding Judges/Courts/Terms HR 3611 1943 Staff/Materials
239 Table 5 7. Continued Bill type Bill number Year introduced Court rewarding type Issue HR 3732 1943 Adding Judges/Courts/Terms HR 3750 1943 Adding Judges/Courts/Terms HR 4065 1944 Staff/Materials HR 4166 1944 Staff/Materials HR 5518 1944 Adding Judges/Courts/Terms HR 181 1945 Arbitration HR 1196 1945 Adding Judges/Courts/Terms HR 1201 1945 Power to Remove judges HR 2181 1945 Salary/Miscellane ous expenses HR 2668 1945 Adding Judges/Courts/Terms HR 3167 1945 Adding Judges/Courts/Terms HR 3281 1945 Adding Judges/Courts/Terms HR 3871 1945 Adding Judges/Courts/Terms HR 4100 1945 Adding Judges/Courts/Terms HR 4160 1945 Staff/Materials HR 4230 1945 Staff/Materials HR 6682 1946 Staff/Materials HR 325 1947 Adding Judges/Courts/Terms HR 1054 1947 Adding Judges/Courts/Terms HR 1436 1947 Adding Judges/Courts/Terms HR 2084 1947 Arbitration HR 2746 1947 Staff/Materials HR 3214 1947 Adding Judg es/Courts/Terms HR 3980 1947 Arbitration HR 5106 1948 Adding Judges/Courts/Terms HR 5611 1948 Adding Judges/Courts/Terms HR 17 1949 Power to Remove judges HR 544 1949 Adding Judges/Courts/Terms HR 2166 1949 Salary/Miscellaneous expenses HR 3111 194 9 Adding Judges/Courts/Terms HR 3113 1949 Adding Judges/Courts/Terms HR 3762 1949 Crime HR 3775 1949 Adding Judges/Courts/Terms HR 3793 1949 Adding Judges/Courts/Terms HR 4579 1949 Studies to improve judicial efficiency HR 4963 1949 Adding Judges/Cou rts/Terms HR 5137 1949 Adding Judges/Courts/Terms
240 Table 5 7. Continued Bill type Bill number Year introduced Court rewarding type Issue HR 5191 1949 Adding Judges/Courts/Terms HR 5287 1949 Adding Judges/Courts/Terms HR 5810 1949 Adding Judges/Cou rts/Terms HR 6240 1949 Adding Judges/Courts/Terms HR 6454 1949 Adding Judges/Courts/Terms HR 6606 1950 Adding Judges/Courts/Terms HR 6836 1950 Adding Judges/Courts/Terms HR 6869 1950 Adding Judges/Courts/Terms HR 7009 1950 Adding Judges/Courts/Terms HR 7260 1950 Adding Judges/Courts/Terms HR 7399 1950 Adding Judges/Courts/Terms HR 7570 1950 Adding Judges/Courts/Terms HR 7869 1950 Adding Judges/Courts/Terms HR 9171 1950 Staff/Materials HR 948 1951 Adding Judges/Courts/Terms HR 3899 1951 Studies to improve judicial efficiency HR 1070 1953 Adding Judges/Courts/Terms HR 5801 1953 Salary/Miscellaneous expenses HR 5802 1953 Salary/Miscellaneous expenses HJR 340 1954 Designation HR 9730 1954 Arbitration HR 3828 1955 Salary/Miscellaneous expenses HR 4791 1955 Salary/Miscellaneous expenses HR 4792 1955 Judicial Branch HR 6248 1955 Studies to improve judicial efficiency HR 7500 1955 Studies to improve judicial efficiency HR 9137 1956 Adding Judges/Courts/Terms HR 10949 1956 Salary/Miscellaneou s expenses HR 11124 1956 Salary/Miscellaneous expenses HR 11743 1956 Adding Judges/Courts/Terms HR 13 1957 Bankruptcy HR 110 1957 Judicial Branch HR 2136 1957 Adding Judges/Courts/Terms HR 3046 1957 Studies to improve judicial efficiency HR 3369 195 7 Salary/Miscellaneous expenses HR 3816 1957 Staff/Materials HR 3818 1957 Studies to improve judicial efficiency
241 Table 5 7. Continued Bill type Bill number Year introduced Court rewarding type Issue HR 3819 1957 Studies to improve judicial efficien cy HR 4191 1957 Salary/Miscellaneous expenses HR 4642 1957 Studies to improve judicial efficiency HR 7866 1957 Adding Judges/Courts/Terms HR 10154 1958 Studies to improve judicial efficiency HR 12292 1958 Studies to improve judicial efficiency HR 136 72 1958 Adding Judges/Courts/Terms HR 2909 1959 Salary/Miscellaneous expenses HR 2979 1959 Staff/Materials HR 2982 1959 Studies to improve judicial efficiency HR 5396 1959 Studies to improve judicial efficiency HR 7979 1959 Adding Judges/Courts/Terms HR 12552 1960 Adding Judges/Courts/Terms HR 176 1961 Studies to improve judicial efficiency HR 5255 1961 Evidence HR 5753 1961 Evidence HR 6690 1961 Evidence HR 6902 1961 Salary/Miscellaneous expenses HR 7259 1961 Adding Judges/Courts/Terms HR 8216 1961 Adding Judges/Courts/Terms HR 8337 1961 Adding Judges/Courts/Terms HR 9844 1962 Adding Judges/Courts/Terms HR 10012 1962 Adding Judges/Courts/Terms HR 10016 1962 Adding Judges/Courts/Terms HR 10184 1962 Adding Judges/Courts/Terms HR 10389 1962 Adding Judges/Courts/Terms HR 10432 1962 Agency Rule Making HR 10931 1962 Adding Judges/Courts/Terms HR 11086 1962 Salary/Miscellaneous expenses HR 11678 1962 Adding Judges/Courts/Terms HR 12157 1962 Salary/Miscellaneous expenses HR 2835 1963 Evidenc e HR 2844 1963 Salary/Miscellaneous expenses HR 2845 1963 Adding Judges/Courts/Terms HR 4157 1963 Staff/Materials HR 4989 1963 Adding Judges/Courts/Terms HR 5964 1963 Adding Judges/Courts/Terms
242 Table 5 7. Continued Bill type Bill number Year introd uced Court rewarding type Issue HR 1781 1965 Adding Judges/Courts/Terms HR 2653 1965 Adding Judges/Courts/Terms HR 3999 1965 Salary/Miscellaneous expenses HR 5283 1965 Salary/Miscellaneous expenses HR 5374 1965 Salary/Miscellaneous expenses HR 7707 1965 Staff/Materials HR 7755 1965 Salary/Miscellaneous expenses HR 8317 1965 Adding Judges/Courts/Terms HR 13650 1966 Tort Reform HR 2518 1967 Bankruptcy HR 8338 1967 Adding Judges/Courts/Terms HR 8376 1967 Adding Judges/Courts/Terms HR 9391 1967 S alary/Miscellaneous expenses HR 13016 1967 Salary/Miscellaneous expenses HR 13315 1967 Adding Judges/Courts/Terms HR 4244 1969 Salary/Miscellaneous expenses HR 5981 1969 Adding Judges/Courts/Terms
243 Table 5 8 House c ourt r ewardi ng b ills r eported out of c ommittee, 1970 2008 Bill type Bill number Year introduced Court Rewarding Type Issue HR 17901 1970 Studies to improve judicial efficiency HR 6745 1971 Adding Judges/Courts/Terms HR 7375 1971 Salary/Miscellaneous expenses H R 7378 1971 Studies to improve judicial efficiency HR 8699 1971 Staff/Materials HR 9180 1971 Adding Judges/Courts/Terms HR 11394 1971 Adding Judges/Courts/Terms HR 12101 1971 Salary/Miscellaneous expenses HR 12979 1972 Adding Judges/Courts/Terms HR 3 490 1973 Salary/Miscellaneous expenses HR 17409 1974 Studies to improve judicial efficiency HR 4580 1975 Studies to improve judicial efficiency HR 6150 1975 Salary/Miscellaneous expenses HR 6184 1975 Salary/Miscellaneous expenses HR 10624 1975 Bankrup tcy HR 2770 1977 Salary/Miscellaneous expenses HR 7843 1977 Adding Judges/Courts/Terms HR 8200 1977 Bankruptcy HR 9705 1977 Studies to improve judicial efficiency HR 11002 1978 Right of Federal government to Contract HR 13331 1978 Adding Judges/Cour ts/Terms HR 14145 1978 Adding Judges/Courts/Terms HR 111 1979 International Agreement/Trade HR 1046 1979 Adding Judges/Courts/Terms HR 1716 1979 International Agreement/Trade HR 2301 1979 Adding Judges/Courts/Terms HR 3806 1979 Adding Judges/Courts/T erms HR 5103 1979 Evidence HR 7540 1980 Adding Judges/Courts/Terms HR 7665 1980 Adding Judges/Courts/Terms HR 7974 1980 Power to Remove judges HR 8178 1980 Adding Judges/Courts/Terms HR 4482 1981 Adding Judges/Courts/Terms HR 6260 1982 Copyright HR 6514 1982 Immigration HR 6872 1982 Studies to improve judicial efficiency HR 6978 1982 Adding Judges/Courts/Terms
244 Table 5 8. Continued Bill type Bill number Year introduced Court Rewarding Type Issue HR 3 1983 Adding Judges/Courts/Terms HR 1510 1983 Immigration HR 5365 1984 Studies to improve judicial efficiency HR 5644 1984 Studies to improve judicial efficiency HR 5645 1984 Studies to improve judicial efficiency HR 5919 1984 Staff/Materials HR 6163 1984 Adding Judges/Courts/Terms HR 439 1985 Studies to improve judicial efficiency HR 2183 1985 Studies to improve judicial efficiency HR 2211 1985 Adding Judges/Courts/Terms HR 3570 1985 Salary/Miscellaneous expenses HR 5316 1986 Adding Judges/Courts/Terms HR 1115 1987 Consumer Protection Products HR 1158 1987 Fair Housing HR 1162 1987 Agency Rule Making HR 1596 1987 Adding Judges/Courts/Terms HR 2851 1987 Energy Policy HR 4064 1988 Adding Judges/Courts/Terms HR 4340 1988 Salary/Miscellaneous expenses HR 4807 1988 Studies to impro ve judicial efficiency HR 1620 1989 Power to Remove judges HR 2497 1989 Adding Judges/Courts/Terms HR 3046 1989 Copyright HR 3406 1989 Evidence HR 3898 1990 Studies to improve judicial efficiency HR 4174 1990 Adding Judges/Courts/Terms HR 4314 1990 International Agreement/Trade HR 4757 1990 Staff/Materials HR 5269 1990 Crime HR 5316 1990 Studies to improve judicial efficiency HR 5381 1990 Studies to improve judicial efficiency HR 829 1991 Adding Judges/Courts/Terms HR 1206 1991 Studies to impro ve judicial efficiency HR 1252 1991 Evidence HR 1253 1991 Family Law HR 2039 1991 Arbitration HR 2450 1991 Evidence
245 Table 5 8. Continued Bill type Bill number Year introduced Court Rewarding Type Issue HR 2549 1991 Arbitration HR 3204 1991 Arb itration HR 3206 1991 Salary/Miscellaneous expenses HR 3666 1991 Adding Judges/Courts/Terms HR 3686 1991 Adding Judges/Courts/Terms HR 3795 1991 Adding Judges/Courts/Terms HR 3910 1991 Adding Judges/Courts/Terms HR 4567 1992 Copyright HR 5688 1992 Adding Judges/Courts/Terms HR 5933 1992 Salary/Miscellaneous expenses HR 6020 1992 Bankruptcy HR 416 1993 Adding Judges/Courts/Terms HR 1102 1993 Arbitration HR 2840 1993 Arbitration HR 5116 1994 Bankruptcy HR 10 1995 Tort Reform HR 925 1995 Pers onal Property HR 1670 1995 Right of Federal government to Contract HR 1861 1995 Copyright HR 2361 1995 Adding Judges/Courts/Terms HR 2604 1995 Adding Judges/Courts/Terms HR 2977 1996 Arbitration HR 3452 1996 Civil Rights HR 3968 1996 Adding Judges /Courts/Terms HR 672 1997 Copyright HR 908 1997 Studies to improve judicial efficiency HR 992 1997 Evidence HR 1581 1997 Arbitration HR 1596 1997 Adding Judges/Courts/Terms HR 2294 1997 Studies to improve judicial efficiency HR 2589 1997 Copyright HR 2696 1997 Copyright HR 3528 1998 Arbitration HR 3789 1998 Evidence HR 915 1999 Salary/Miscellaneous expenses HR 916 1999 Arbitration HR 1752 1999 Studies to improve judicial efficiency
246 Table 5 8. Continued Bill type Bill number Year introduce d Court Rewarding Type Issue HR 2112 1999 Studies to improve judicial efficiency HR 3312 1999 Arbitration HR 5136 2000 Staff/Materials HR 333 2001 Bankruptcy HR 860 2001 Studies to improve judicial efficiency HR 861 2001 Arbitration HR 2336 2001 Ethics in Government HR 4125 2002 Studies to improve judicial efficiency HR 112 2003 Adding Judges/Courts/Terms HR 975 2003 Bankruptcy HR 1417 2003 Copyright HR 1768 2003 Evidence HR 2714 2003 Studies to improve judicial efficiency HR 2738 2003 Int ernational Agreement/Trade HR 2739 2003 Arbitration HR 4646 2004 Adding Judges/Courts/Terms HR 1036 2005 Copyright HR 1038 2005 Studies to improve judicial efficiency HR 1751 2005 Staff/Materials HR 4093 2005 Studies to improve judicial efficiency HR 5414 2006 Arbitration HR 660 2007 Studies to improve judicial efficiency HR 1130 2007 Ethics in Government HR 1908 2007 Copyright HR 2830 2007 Adding Judges/Courts/Terms HR 6126 2008 Arbitration
247 Table 5 9 Negative b inomial e stimati on r esults for House c ourt r ewarding r eport ed o ut of c ommittee by y ear, 1925 2006 Variable Coefficient (Standard Error) P Value Judicial Review .00 (.04) .94 Supreme Court Dissent Rate .03 (.01) .00 Criminal Landmarks .01 (.07) .92 Civil Liberties Landmarks .03 (.05) .63 Economic Landmarks .10 (.09) .26 Institutional Power Landmarks .06 (.14) .67 Original Jurisdiction Landmarks .30 (.26) .25 Polarization .95 (.88) .28 Ideological Institutional Distance .00 (.01) .68 Divided Government .08 (.20) .68 Constant 3.81 (.66) .00 .29 N 82 Residual Test Durbin Watson .08 (.10) 1.74 .43
248 Table 5 10. Negative b inomial r egression e stimation r esults for House a dministrative c ourt r ewarding b ills r eported o ut of c ommittee by y ear, 1925 2008 Variable Coefficient (Standard Error) P Value Judicial Review .05 (.05) .31 Supreme Court Dissent Rate .04 (.01) .00 Criminal Landmarks .04 (.09) .70 Civil Liberties Landmarks .01 (.07) .93 Economic Landmarks .07 (.11) .52 I nstitutional Power Landmarks .22 (.20) .28 Original Jurisdiction Landmarks .62 (.38) .10 Polarization 2.34 (1.13) .04 Ideological Institutional Distance .00 (.01) .80 Divided Government .49 (.26) .07 Constant 4.80 (.86) .00 .31 N 82 Residual Test .01 (.10) .89 Durbin Watson (Original) 1.76
249 Table 5 11 Negative b inomial r egression e stimation r esults for n on a dministrative House c ourt r ewarding b ills r eported o ut of c ommittee by y ear, 1925 2008 Variable C oefficient (Standard Error) P Value Judicial Review .01 (.05) .89 Supreme Court Dissent Rate .01 (.01) .39 Criminal Landmarks .05 (.07) .52 Civil Liberties Landmarks .03 (.06) .61 Economic Landmarks .13 (.10) .20 Institutional Power Landmarks .00 (.15) .98 Original Jurisdiction Landmarks .09 (.29) .76 Polarization .17 (1.01) .86 Ideological Institutional Distance .01 (.01) .41 Divided Government .19 (.22) .40 Constant 1.05 (.76) .17 .25 N 82 Residual Test .20 (.11) .08 Durbin Watson (Original) 1.84
250 CHAPTER 6 CONCLUSIONS INVOLVING THE RELATIONSHIP BETWEEN CONGRESS AND THE COURTS Th is dissertation has provided an overview regarding the relationship between Co ngress and the judiciary over time. This relationship was conceptualized utilizing the principal agent model, and some explanation s were offered regarding the scope of the rela tionship between these branches This chapter will expand upon the prior chapter s by first review ing the model and its application that will help further clarify the relationship between Cong ress and the c ourts tha t was previously observed In applying the model, it is clear that there are different motivations regarding how and why e ach chamber approaches its relationship w ith the courts. T his chapter will therefore present the differences and similarities that were observed regarding these p atterns between the branches This will be followed by a section that will specifically addres s the research questions presented in this dissertation. T he future between Congress and the judiciary will then b e examined with several expected trends and predictions being made. Finally, this chapter will conclude by offering some insight as to new po tential areas to study. A Reexamination of the Application of the Principal Agent Model In order to adequately examine the relationship between Congress and the judiciary, a theoretical framework was required, which could accurately depict and explain why these institutions behave the way that they do. As these institutions have changed over time, so too has its relationship. Accordingly, the principal agent model was selected, since Congress essentially structured the relationship through passing the Judi ciary Act of 1925.
251 In creating this Act, Congress entered into a bargain with the Court, which gave it a discretionary docket that permitted it to choose its own cases. In return, Congress expected the Court to utilize its newfound discretion in deciding cases according to its preferences. To ensure that the Court was complying with the initial terms of the bargain, Congress continued to monitor the Court. If and when the Court utilized its new power inconsistent to Congressional preferences, Congress resp onds by either sanctioning it or providing incentives as a means of control. T his method is aimed at preventing judicial shirking by ensuring compliance. In applying this model, a better understanding was obtained regarding the relationshi p between Congres s and the judicial branch First, Congress has increasingly sought to control the Court through sanctions over time This was particularly seen with the increasing frequency of court curbing legislation reported out of committee from 1925 2008. This meth od of control has been successful at times, as the Court has appeared to modify its behavior in response to Congressional threats. For example, the Court packing plan represented a clear threat to the judiciary that caused the Court to alter its decision m aking and even change the types of cases that it would hear. In Communism and the scope of Congressional investigations. Both of these examples clearly show that Congress threatens the Court through reporting hostile legislation out of committee, which may elicit a response by the Court that is in alignment with Congressional preferences. The principal agent model also explains court rewarding behavior. As seen in both cha mbers, the incidents of court rewarding legislation that was reported out of
252 committee did in fact exhibit the opposite pattern as court curbing legislation, as it declined over time. This suggests that as the Court continued to disregard Congressional pre ferences, Congress responded by providing more sanctions, and less incentives. Both curbing and rewarding thus are clear attempts at establishing and maintaining control over the judiciary. While utilizing the principal agent model proved to be an effecti ve framework many questions still remained regarding attempts at c ongressional control. While the judiciary may respond to both threats and incentives, further analysis was still needed i n order to explain precisely how Congress attempts to gain control. These explanations regarding the underlying motivations are presented in the following section. Explaining Different Motivations by Chamber at Controlling the Courts While the principal agent model applied to explain the relationship between Congress and t he judicial branch, it was further broken down by chamber. This approach permitted a more extensive analysis and provided a better explanation regarding why Congress as an institution wo uld attempt to control the judiciary The decision to engage in such a bicameral approach was based on the underlying presumption that each chamber would likely view its relationship different ly with the judiciary As previously presented, t his presumption was based on the different constitutional arrangements afforded to ea ch chamber. The power of advice and consent, and longer terms for the Senate suggested that Senators would be more deliberative in their approach with the judicial branch. Shorter terms for House members suggested a potentially different approach, with Con gressmen likely being more responsive to constituent pressures.
253 These presumptions ultimately appear to explain how each chamber approaches its relat ionship with the courts In performing a qualitative and quantitative analysis, several patterns that were observed confirms that both chambers may in fact have different motivations. As expected, the Senate appears to be the more deliberative chamber, and is more concerned about maintaining the institution of Congress and the system of separation of powers. T his was particularly seen as the Senate responded to judicial decisions that appeared to target the institution of Congress itself, such as cases involving reapportionment, and the scope of Congressional investigations. T he quantitative results further sup ported these findings, as the Senate responded to instances of judicial review by attempting to curb the Court. Clearly, the usage of judicial review is an institutionally hostile endeavor by the Court as it strikes down legislation passed by a popularly e lected institution. Similarly, the ideology of the institutions played a role in the decision making process of the Senate. More particularly, the results indicated that the Senate reported out more legislation attempting to curb the Court during times whe n the institutions were ideologically divergent. This reveals that the Senate monitors the ideological nature of the relationship between the institutions, and is willing to sanction the Court as it strays from the ideological preferences of the Senate. Th ese institutional results however, do not mean that the Senate discounts also o btained for several of the variables, indicating that the Senate responds to judicial
254 decisions in certain subject areas. This is related to electoral co ncerns, as the Senate shows a willingness to sanction a Court that was willing to delve into unpopular issues. ders electoral concerns First, the results indicated that the Senate rewarded the Court less in response to increasing party polarization. This result also has an electoral component, since as the parties grow more polarized, the members are more likely to seek policy that is congruent with their constituents. During times when the Court is rendering decisions involving controversial issues that are divisive, such as civil rights and li berties, it is likely not to be electorally advantageous to pursue policy that rewards the controversial institution. Hence, the Senate is more likely to reward the Court when there is less polarization. In addition, the results regarding the United States Supreme Court dissent rate may be related to electoral concerns as the Senate was less willing to reward a fractured Court This result indicates that the Court was likely delving into controversial issues that elicited more dissensus among the Court. As there were more dissents, and more controversy, the pub lic was likely divided as well, with the Senate rewarding the Court less as it would be electorally advantageous to do so. Unlike the Senate, the results for the House do not indicate any c oncern rega rding the preservation of the institution of Congress. Rather, the results suggest that the House is strictly m otivated by electoral concerns curbing efforts appear primarily motivated by party polarization. While there was no suc h relationship found for instances of Senate cour t curbing, the results indicate that the House does attempt to curb the Court as polarization increases. This is once again explained in terms of electoral motivation, as House members, concerned about their
2 55 reelection prospects, will pursue attacks on the Court during times when it is electorally advantageous to do so. These time frames are likely eras when the Court is either divided itself, or issuing unpopular decisions. During these periods, the parties may also be increasingly divided, creating the opportunity for the House to take advantage of a divided populace by seeking legislation that attacks the Court. Clearly in pursuing this type of policy, House members are pandering to their constituents in or der to ensure reelection. Second, and s imilar to the Senate, the results for the House indicate that the once again as the Court decided more disputes concerning divisi ve issues involving civil rights and liberties, the House responded by attempting to sanction the Court. This agenda and also the results involving the dissent rate with court rewarding legislation confirms a potential electora l motivation as previously noted. However, it appears that both chambers are motivated by similar factors when deciding to expand the judiciary. Polarization once again appears to be the primary culprit, as fewer attempts to expand the judiciary were repo rted out of committee a s the parties grew more polarized This may be explained in terms of party construct as the last era under analysis witnessed a shift in partisan loyalties, with southern Democrats migrating into the Republican Party. With this shif t and increasingly ideologically coherent parties, polarization grew, which coincided with several years of divided government. The result was less attempts to expand the judiciary, which substantively makes sense, as members from one political party woul d be reticent to expand the judiciary during a time when there is a President from an opposing party.
256 In conclusion, the results for both the Senate and the House indicate a complex relationship with the judiciary. The different motivations behind each cha mber in its approach toward the judicial branch are likely the result from the initial constitutional design. In spite of the different motivations, both still appear to approach their relationship to the judiciary in a similar manner. Both chambers appear to take the role of principals in individual principal agent relationships with the judicial branch. Providing Answers to Important Questions This dissertation has addressed several key questions regarding the scope of the relationship between Congress a nd the courts. The previous two sections summarized the conclusions observed throughout and have provided overall answers to the substantive questions previously presented With regard to the first question involving monitoring efforts, it is clear that C ongress has indeed monitored the judicial branch since the Court was awarded the discretionary docket. This monitoring has taken place through the judiciary committee of both chambers, which have consistently taken note Following monitoring, t he second question involves the extent that Congress attempts to control the judicial branch. This question can be answered in terms of conflicting goals. More specifically, a s goals between Congress and t he judicial branch often conflicted during the time under analysis, several attempts at controlling the courts were undertaken by Congress. This was seen in both court curbing and rewarding efforts. As previously noted, overall curbing efforts have increas ed, while rewarding efforts have decreased since the conferral of the discretionary docket. While several explanations were offered to account for these trends, it is noteworthy as the patterns
257 reveal that Congress has attempted to control the judiciary, a nd may have thus seen itself as the principal in its relationship with the courts. The third question involves whether Congress acted in a uniform manner in its relationship with the judicial branch. As the previous section indicates, Congress did not act in such a uniform manner, as the House and Senate approached its relationship ins titution of Congress, and the general system of separated powers. The different motivations are once again likely attributed to the different constitutional arrangements between the two chambers. Finally, in answering the last question posed, it is clear t hat both ideology and partisanship play critical roles in the re lationship between the branches. Institutional ideology clearly played a role in the decision of the Senate in its efforts to control the courts through sanctions. The House on the other hand, is motivated by partisanship, w hich reinforces the answer to the previous question regarding differing motivations. However, interestingly, both chambers appear to be affected by polarization in their decisions to expand the judiciary. This suggests that expansion of the courts may not only be based on administrative needs, but also have an electoral component as well. Overall, this dissertation has provided further insight into the relationship between Congress and the courts Based on this insight, and t he findings noted above several predictions can be made regarding the future relationship between these branches, which will be presented in the following section. In addition, both the findings
258 and the predictions made implicate several potential areas t o research in the future. The final section will conclude with further areas for future study. The Future Relationship between Congress and the Courts Considering the relationships discussed above, it is possible to speculate as to the f uture between thes e branches First, with regard to court curbing legislation, it is anticipated that the frequency of this type of behavior will continue to increase over time. This pattern was observed in both cham bers, as a dramatic increase was witnessed during the most recent time frame. An interesting phenomenon was also observed, as the increasing trend occurred following the Republican Revolution of 1994 in which conservative Republican Congressmen continued to attack an increasingly conservative judiciary This patt ern coincided with the increasing trend in polarization, suggesting that the court curbing efforts may have been an attempt by conservative members to pander to their constituents by att acking a Court and lower federal bench which while conservative, was not as conservative as the base that the Congressman was attempting to appeal to. Thus, with the expectation that the current era of politics will be dominated by polarization, it would appear that attacks on the Court will continue. An additional pattern regarding court curbing legislation that is expected to continue is the increasing trend in administrative court curbing. Recall that t his type of legislative behavior describes when Congress prevents judicial review or jurisdiction of the courts from cert ain dispute s involving executive officials As this new form of court curbing behavior has occurred and increased primarily in the past thirty years, the trend is expected to continue. This increasing trend is anticipated in spite of which party is in cont rol of Congress and the executive, as both parties displayed a willingness to protect agency determinations in spite of partisan control.
259 Court rewarding, on the other hand, is expected to exhibit the opposite pattern as court curbing. In general, whereas court curbing witnessed an increase over time, court rewarding has displayed the opposite trend. This declining pattern has once again coincided with the increase in polarization, and hence in our current electoral environment, it is likely that the patte rn will continue. After all, with the Court continuing to decide controversial cases involving issues ranging from gay marr iage, health care, and habeas corpus rights of enemy combatants/detainees there is a strong likelihood that disagreement between Con gress and the courts will continue. This disagreement will likely translate into fewer rewards for the judiciary, which will continue the trend noted above. Finally, attempts to expand the judiciary are likewise anticipated to decline. As was observed, Co ngress has recently shifted regarding how i t rewards the judiciary and arguably itself over time. Initial attempt s focused on expanding the courts while most recent efforts involve more traditional forms of court rewarding, such as salary increases, and c reating alternative dispute resolution mechanisms such as arbitration or mediation. However, the expansionary bills have drastically decreased over time. These bills may have been ideological attempts during certain time frames that were used by one politi by adding more ideologically congruent judges to the bench. These expansionary bills may also have been attempts by Congressmen to garner more federal resources to their dis tricts and hence gain more public support, or are used to reward a district or state for presidential support. Whatever the motivation, it is anticipated that the declining trend will continue. This is expected regardless of which party is in power, since while
260 expanding the federal judiciary was largely a Democratic effort, these bills have continued to decline regardless of which party controlled the chamber. Overall, in this era of partisanship and political differences, increasing hostility is expected to con tinue between these branches The intense amount of polarization in Congress alone may have future implications for the inter branch relationship. It is possible that during highly polarized eras, the Court ma y be more likely to stray from c ongressi onal preferences, and assert its own will. This can particularly be seen in the most recent rulings involving the War on Terror and the treatment of detainees. 1 These cases indicate that the Court is more willing to defy the modern Congress, and as such, i t is anticipated that the tension between the branches will continue. Congressional efforts at controlling the courts in response to such rulings will likely continue as well. Areas to Examine Further Based on the extensive analysis performed throughout t his dissertation, many questions remain, which reveal potential future avenues of research. The first involves the relationship between these institutions and the executive branch. With the analysis 1 These cases largely involve the issue of Habeas Corpus The battle between Congress and the Court began with the ruling in Rasul v. Bush (2004), in which the Court held that foreigners brought to U.S. territory had a statutory right of Habeas Corpus. This case was followed by Hamdi v. Rumsfeld (2004), which h eld that the President was authorized by Congress to declare U.S. Citizens enemy combatants and could detain them. However, these individuals still retained other constitutional guarantees, such as consulting with attorneys and the right to have their case heard in front of an independent tribunal. These decisions caused concern among many Congressmen, who believed that they would harm the War on Terror. In response, Congress passed the Detainee Treatment Act, which overturned the statutory right to Habeas Corpus. In addition, the President unilaterally created military commissions. The Court soon after deemed the commissions unconstitutional in Hamdan v. Rumsfeld (2006), since they would require Congre ssional approval. In addition, the Court held that Hamdan still had the statutory right of Habeas Corpus, since his case was still pending during the passage of the Detainee Treatment Act. In response, Congress passed the Military Commissions Act in 2006, which authorized the President to create these military commissions, and attempted to strip the Court of jurisdiction to hear cases involving the Constitutional (as opposed to statutory) right of Habeas Corpus. In Boumediene v. Bush (2008), the Court held that the Military Commissions Act was unconstitutional, and that foreign detainees have a constitutional Habeas Corpus right. This interplay between Congress and the Court, and the decision in Boumediene, displays the current conflict between these institu tions, and supports the premise that the Court may be more likely to assert its will during increased time frames of polarization.
261 performed involving court curbing legislation, recent dev elopments suggest that Congress attempts to insulate administrative decisions from judicial review. This suggests that the executive plays a role in the relationship between Congress and the judiciary, and hence a closer examination of this role should be undertaken. In order to incorporate the executive branch into the analysis, one may consider examining executive orders and vetoes, and the subsequent responses by Congress and the courts to determine whether there are any patterns involving sanctions and incentives. These orders and the usage of the veto would provide a clear picture of executive preferences, which could be compared to legislative and judicial actions during the same time period. Furthermore, it may reveal interesting patterns that could reinforce the applicability of the principal agent model in the relationship between not only Congress and the courts, but perhaps even between the executive and these other institutions as well. An additional area of research that may be of in terest in t he future involves c ongressional action. More particularly, individual analysis and closer attention sho uld be afforded to the type of co ngressional bills being offered. While there have been studies that examine the introduction (Clark 2009, 2011) and the reporting out of legislation, none have broken down the bills into statutory and constitutional attempts to sanction or reward judicial behavior. This is important since most current studies that examine judicial behavior, divide the analysis i nto whether the Court decides the case on statutory or constitutional grounds. 2 These studies consider this judicial behavior separately since it is much more difficult to alter a constitutional decision. 2 On the statutory side, studies include those by Gely and Spiller (1990), Rosenberg (1992), Spiller and Tiller (1996), Han sford and Damore (2000), Bergara, Richman and Spiller (2003), Sala and Spriggs
262 By likewise dividing the analysis into constitutional and sta tutory proposals that target the judiciary one may be able to determine further insight into the relatio nship between these branches For example, Congress may utilize constitutional bills attempting to overturn specific decisions or alter the structure o f the judiciary during periods of increased strain between the branches. Likewise, during times of decreased hostility, Congress may simply react by introducing or reporting out statutory legislation targeting the Court. It is also possible that the Court may react differently depending on the nature of the legislation, as constitutional attempts may be viewed as hallow threats Court packing plan, and the constitutional ef forts to override the case involving Congressional investigations, the Court may view these as legitimate threats during certain time frames. These differences between types of c ongressional legislation may be an important aspect of the relationship betwee n these institutions that has previously gone unexplored. In addition to the types of legislation, an expanded analysis should be undertaken, which would compare and contrast the Court before and after the grant of the discretionary docket. While some work s have engaged in an analysis over an extended period (Nagel 1965; Rosenberg 1992; Clark 2009, 2011), they did not recognize the possibility that the Court was fundamentally a different institution both before and after the Judiciary Act of 1925. However, it is possible that the Court may react differently to the same phenomenon explored in this dissertation during a different (2004), and Clark (2009). From the constitutional perspective, studies include Gely and Spiller (1992), Segal (1997), Segal and Westerland (2005), Harvey and Friedman (2006, 200 9), and Segal, Westerland and Lindquist (2011). Some studies examine both statutory and constitutional decisions by examining both separately, which include Bailey and Maltzman (2011) and Clark (2011).
263 time frame. For example, as polarization has oscillated back and forth between periods of great hostility between the parties to tho se with less instances of partisanship, the relationship between the branche s may react accordingly. O ne era of polarization during one century can be compared with that of another to see whether Congress attempts to constrain the Court similarly during th ese periods and whether the Court responds to the same behavior Finally more attention should be afforded to the committee structure and those who serve on them regarding passage of legislation involving the judiciary. Several accounts have discussed the t ransformation of the committee structure in Congress, and the implications that it has had on the institution (Deering and Smith 1997; Aldrich and Rohde 2005). This transformation is important, as it may play a role in how Congress treats the judicial bran ch In other words, the internal workings and structure of Congress, and the transformation of the committee system, may spillover and impact the relationship with the judiciary. This may be seen in the power of committee chairmen, or certain committees du ring different time frames. In conclusion, it is believed that the overall approach and findings of this dissertation contributes to the field of political science, as the inter branch relationship was clearly displayed and explained throughout. Furthermo re, the above suggestions offer some guidance as to potential areas of future study involving the inter branch relationship between Congress and the courts. It is hoped that continuing to study this relationship will add to the understanding of not just th e relationship between the branches, but also will provide more knowledge regarding the functioning of our government in general.
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272 BIOGRAPHICAL SKETCH H. Chris Tecklenburg grew up in South Carolina. He attended the University of South Carolin a and earned a B.A. in political science in 2002. In 2005, he earned a J .D. from the University of South Carolina School of Law. A fter a brief two year career practicing law in Charleston, South Carolina, he attended th e University of Florida, where he received an M.A. in 2010 and a Ph.D. in political science in 2013 Since August 2012, Chris has been employed as an instructor of political science at Austin Peay State University in Clarksville, Tennessee.
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