The cases the United States Supreme Court chooses to hear are strongly influenced by the legislative preferences of Congress, scholars at New York University have found. Their research, which examined the Rehnquist Court from 1987 to 2001, showed that the justices were less likely to hear cases involving constitutional challenges to liberal statutes from 1987 to 1994, when the House and the Senate were under Democratic control, than they were from 1995 to 2001, when Republicans had a majority in both chambers. The study, “Ducking Trouble,” appears in this month’s issue of the Journal of Politics.
Previous studies have found that Congress has little influence on Supreme Court rulings, but this body of research has focused on the Court’s decisions and not on which cases it chooses to hear. In “Ducking Trouble,” the study’s co-authors, Anna Harvey, a professor in NYU’s Department of Politics, and Barry Friedman, a professor in NYU’s School of Law, developed a model to estimate the probability that the high court would review a congressional statute, in order to determine if there was a selection bias in the cases it chose to hear.
“This paper thus provides the first estimates of which we are aware of the magnitude of the congressionally induced selection bias in the Court’s constitutional docket,” the co-authors wrote.
The study may be downloaded as a pdf file here.
Their findings showed that the likelihood that the Rehnquist Court would review a liberal statute enacted between 1987 and 1994 increased by 123 percent after Congress became more conservative following the 1994 elections. The likelihood that the high court would review “landmark” liberal statutes increased by 500 percent after 1994, when Republicans gained control of both chambers of Congress for the first time since the 1950s.
Harvey and Friedman point out that the study has important implications for the question of whether the Court’s opinions are also influenced by congressional preferences.
“Our results may shed some light on the failure of most empirical studies to find any effects of congressional preferences on the Court’s final rulings on the merits,” they wrote.
“The Court is less likely to review cases involving constitutional challenges to congressional statutes when it will have to defer significantly to congressional preferences in its final decisions. Cases that could systematically demonstrate the effects of congressional constraint on the Court are likely then to be weeded out of the Court’s docket. Studies which fail to take into account the fact that the selection bias in the Court’s docket permits it to duck congressional trouble may miss the extent to which the Court is dependent on the political branches.”
Harvey’s and Friedman’s results in “Ducking Trouble” support their results in an earlier paper, “Pulling Punches,” that appeared in the journal Legislative Studies Quarterly in 2006. In that paper, the co-authors found that once selection bias is addressed, the Supreme Court is in fact very responsive to congressional preferences in its final decisions. For example, the probability that the Rehnquist Court would strike a liberal statute rose by over 300 percent as a function of the rightward shift in the 1994 congressional elections, and remained that high through the 2001 term.
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