Policy statements or symbolic politics? Explaining congressional court-limiting attempts

Judicature

Volumn 89, Issue 4, 2006, Pages 196-201

  Bell, Lauren C ^a   Scott, Kevin M ^b  

^a RANDOLPH MACON COLLEGE   (United States)

^b TEXAS TECH UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33645775539     PISSN: 00225800     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (32)

1. Daily Edition: 150 CONG. REC. E1687 (daily ed. Sept. 22, 2004).
2. The legislative studies and judicial politics literatures do not use consistent terminology to describe congressional dibits to reduce the power of the federal courts. This article employs the term "court-limiting" to describe such efforts, including attempts by Congress to reduce or eliminate the courts' jurisdiction, to limit judgeships or other federal judicial personnel, or to alter the circumstances under which the federal conns are able to declare a state or federal statute to be unconstitutional.
3. E.g. William Casto, An Orthodox View of the Two-Tier Analysis of Congressional Control Over Federal Jurisdiction, 7 CONST. COMMENTARY 1 (1990);
4. Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. I.. REV. 895 (1984);
5. Kenneth R. Thomas, Limiting Court Jurisdiction Over Federal Constitutional Issues: Court Stripping, CRS REPORT FOR CONGRESS (Washington, D.C.: Congressional Research Service, 2003).
6. E.g. Stuart Nagel, Court Curbing Periods in American History, 18 VAND. L. REV. 925 (1965);
7. John A. Clark & Kevin T. McGuire, Congress, the Supreme Court, and the Flag, 49 POL. RES. Q. 77] (1996).
8. E.g. Walter Murphy, CONGRESS AND THE COURT (Chicago: The University of Chicago Press, 1962);
9. John Schmidhauser and Larry Berg, THE SUPREME COURT AND CONGRESS (New York: Free Press, 1972).
10. E.g. Joseph Ignagni & James Meernik, Explaining Congressional Attempts to Reverse Supreme Court Decisions, 47 POL. RES. Q. 353 (1994);
11. James Meernik &Joseph Ignagni, Congressional Attacks on Supreme Court Decisions Involving Unconstitutional State Laws, 48 POL. RES. Q. 43 (1995);
12. Johnny H. Killian & Leland E. Beck, Acts of Congress Held Unconstitutional in Whole or in Part by the Supreme Court of the United States, S. Doc. No. 16, 99th Cong., 1st Sess. (1987).
13. Richard Hall, PARTICIPATION IN CONGRESS (New Haven CT: Yale University Press, 1996);
14. Lesli McCollum Gooch "The Role of Personal Policy Interests in Congressional Activity." Unpublished manuscript, 2005.
15. See Clark & McGuire, supra n.4, at 776.
16. E.g. David Mayhew, CONGRESS: THE ELECTORAL CONNECTION (New Haven: Yale University Press, 1974);
17. Richard Fenno, HOME STYLE: HOUSE MEMBERS IN THEIK DISTRICTS (New York: HarperCollins, 1978).
18. We do not include cosponsors, when present, since while previous scholarship on cosponsorship offers conflicting accounts of members' motivations for agreeing to cosponsor legislation, none suggests that cosponsorship be treated as tantamount to sponsorship. See, e.g. Wendy J. Schiller, PARTNERS AND RIVALS: REPRESENTATION IN U.S. SENATE DELEGATIONS (Princeton, NJ: Princeton University Press, 2000).
19. DW-NOMINATE ideology scores were developed by Howard Rosenthal and Keith Poolc. They offer estimations of members' ideological positions within their respective chambers. They are directly comparable during stable political eras.
20. L. Marvin Overby & Lauren Bell, Rational Behavior or the Norm of Cooperation?: Filibustering Behavior Among Retiring Senators, 66 J. POL. 3, 2004;
21. Rorie Spill Solberg and Eric Heberlig, Communicating to the Courts and Beyond: Why Members of Congress Participate as Amici Curiae, 29 LEGIS. S. Q. 591-610 (2004).
22. See, e.g., Mark Miller, Lawyers in Congress: What Difference Does it Make? 20 CONG. & PRES. I (1993);
23. Spill Solberg and Heberlig, supra n. 12.
24. For each member of Congress, data were taken from the National Election Studies (NES) 194&-2002 Cumulative data file and rescaled, when necessary, to provide for a uniform measure across the period of study. We note several caveats about the use of this variable: First, the NES does not obtain responses in all congressional districts in all years. Thus, in a few cases, data are missing for this variable. This should make it more difficult for us to find statistically-significant effects, since we are reducing the number of cases ultimately available for analysis. Second, in many cases, the total number of respondents within a district is small - sometimes fewer than five. As a result, the data may not represent the opinions of all constituents in all districts, even though NES takes care to randomize its survey administration. Finally, we do not attempt to correct for redistricting. We know of no decision rule that allows us to determine which responses to accept and reject even in the event that we could identify those districts that were substantially redrawn following the 1980 or 1990 census. While this measure suffers from significant difficulties, we are aware of no other measure that taps into district-level opinion of the federal courts consistently throughout the period of study.
25. Spill Solberg and Heberlig, supra n. 12, found that more senior members sign on to amieus mriae briefs less frequently than do junior members of Congress, suggesting that seniority may offer insight into the timing of members' court-limiting activities. All of the variables are coded the same as for the bivariate analyses, but in the logit analysis we used the logged value of the number of terms served because the relationship between legislative activity and tenure is not linear
26. (on this point, see John Hibbing CONGRESSIONAL CAKEF.RS: CONTOURS OF LIFE IN THE U.S. HOUSE OF REPRESENTATIVES [Chapel Hill, NC: University of North Carolina,1991]).
27. See Gary Cox and Mathew McCubbins, LEGISLATIVE LEVIATHAN: PARTY GOVERNMENT IN THE HOUSE (Berkeley, CA: The University of California Press, 1993).
28. We conducted a rare events logit. See Gary King and Langche Zeng, Logistic Regression in Rare Events Data, 9 POL. ANALYSIS 144 (2001). In the interest of both readability and parsimony, we do not present the econometrics of this procedure here, but results are available from the authors upon request.
29. Data compiled from the roll-call votes of members of Congress demonstrates that with the erosion of the bloc of Southern Democrats in the House throughout the 1970s and 1980s, the Democratic and Republican parties have moved further to the left and right, respectively. Not only do our own results demonstrate this, hut several studies reach and report the same conclusion using the same data (DW-NOMINATE scores) that we use in this project. See, e.g., Richard Fleisher & Jon Bond, The Shrinking Middle in the U.S. Congress, 34 BRIT. J. OF POL. Sea. 3 (2004).
30. Overby and Bell, supra n. 12;
31. Spill Solberg and Heberlig, supra n. 12.
32. Cf. Spill Solberg and Heberlig, supra n. 12.