Is the US Supreme Court a reliable backstop for an overreaching US president? Maybe, but is an overreaching (partisan) court worse?

Brown, Rebecca L.; Epstein, Lee

doi:10.1111/psq.12831

Cited by 7 publications

(10 citation statements)

References 42 publications

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“…However, given recent developments beginning during the late Obama years and continuing through to the present, the United States has continued to polarize and the Court, in turn, has become more conservative than at any point prior to 1931 (Brown and Epstein 2023;Jessee, Malhotra, and Sen 2022). For example, the Court now favors traditionally conservative, pro-religion litigants in well over 80% of its rulings (Epstein and Posner 2022), a staggering increase in historical terms.…”

Section: Legitimacy Theory and The Courtmentioning

confidence: 99%

“…Levendusky 2009). In other words, if liberals perceive that the Court is behaving in a historically conservative manner, with no signs of abating (Brown and Epstein 2023), and that the justices are motivated by partisan, extralegal, and insincere factors (Baird and Gangl 2006), then why would Democrats continue to indefinitely believe in the value of an unelected Court and its power of judicial review within their system of government?…”

Section: Legitimacy Theory and The Courtmentioning

confidence: 99%

“…Third, following the death of Justice Ruth Bader Ginsburg in September of 2020, in the heat of the presidential race, President Trump nominated, and Senate Republicans confirmed, Justice Amy Coney Barrett by a 52-48 vote, with not a single Senate Democrat voting in favor. This action, undertaken just four years after the successful blockade of Merrick Garland, blatantly and obviously violated the so-called "McConnell Rule", and served to cement the Court's current historically conservative majority (Brown and Epstein 2023).…”

Section: Legitimacy Theory and The Courtmentioning

confidence: 99%

“…Third, the subsequent consolidation of conservative judicial power culminated in the eventual overturning of Roe v. Wade (410 U.S. 113) in Dobbs v. Jackson Women's Health Association (597 U.S. ____). Generally, today's Court is the most conservative in its rulings since the 1930s (Brown and Epstein 2023;Epstein and Posner 2022). For Democrats paying attention to the Court and national affairs (Hitt, Saunders, and Scott 2019), the federal judiciary has become increasingly inhospitable to and detached from public preferences (Jesse et al 2022).…”

mentioning

confidence: 99%

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Supreme Court legitimacy exhibits new partisan sorting

Davis,

Hitt

2023

Preprint

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A rich literature argues that the perceived legitimacy of the U.S. Supreme Court is stable and resists the polarizing forces of partisan politics. However, political developments over the last several years raise the possibility that Democrats and Republicans now view the Court’s place in democracy differently. We analyze an original dataset of surveys from the contemporary period in which widespread partisan sorting dovetails with a sharp decline in public approval of the Court. Study 1 shows that, against the expectations of legitimacy theory, diffuse support for the Court has dramatically sorted since 2016. In Study 2, we find that partisan sorting on several correlates of diffuse support fuels these partisan differences in Supreme Court legitimacy: Democrats are more cynical about the Court, disapprove of its outputs, and approach obedience to the law in ways different than Republicans. Our analysis conveys that partisanship directly and indirectly shapes this crisis of legitimacy.

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Section: Legitimacy Theory and The Courtmentioning

confidence: 99%

Section: Legitimacy Theory and The Courtmentioning

confidence: 99%

Section: Legitimacy Theory and The Courtmentioning

confidence: 99%

mentioning

confidence: 99%

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Supreme Court legitimacy exhibits new partisan sorting

Davis,

Hitt

2023

Preprint

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“…Law, courts, and litigation remain central to American politics and policy (Kagan, 2019; Keck, 2014; Nolette, 2015). Courts continue to take the lead on contentious issues (Lemley, 2022; Brown & Epstein, 2022) and groups on the left and right keep using litigation to pursue their agendas (Kagan, 2019; Keck, 2014). Even a dramatic reversal of rights at the federal level, like the overturning of Roe v. Wade , does not always end litigation; instead, it can trigger new lawsuits in state courts (Zinerke, 2022).…”

Section: Introductionmentioning

confidence: 99%

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

Barnes,

Hevron,

Menounou

2023

Law Soc Rev

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Despite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.

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Diffuse Support, Partisanship, and the Electoral Relevance of the Supreme Court

Davis,

Hitt

2024

J. law courts

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Despite the Supreme Court’s lack of direct electoral accountability, voters may factor its outputs into their voting decisions because elected representatives can affect the Court’s powers and composition. In this paper, we uncover an ironic predicament that faces candidates running on reforming this institution. Citizens who possess higher levels of diffuse support for the Court are more likely to rank it as an important factor in their voting logic. But because this diffuse support has sorted along partisan lines, candidate messaging about reform may not motivate partisans who have lost support for the Court because they view it as less important than other pressing issues. Thus, although Democrats are sympathetic to reform, Democratic candidates may have weak incentives to promote reform given low levels of diffuse support among their constituents. This dynamic mitigates against the possibility of a public or congressional backlash against the Court, preserving the status quo.

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Is the US Supreme Court a reliable backstop for an overreaching US president? Maybe, but is an overreaching (partisan) court worse?

Cited by 7 publications

References 42 publications

Supreme Court legitimacy exhibits new partisan sorting

Supreme Court legitimacy exhibits new partisan sorting

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

Diffuse Support, Partisanship, and the Electoral Relevance of the Supreme Court

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