Reining In The Supreme Court

The appointment of Amy Coney Barrett would make the Supreme Court more conservative than it has been in decades. Importantly, it also would be more conservative than the majority of the public. But one piece of political science research suggests that an out-of-step Court will not simply have its way in the years ahead.

Judges like to present themselves as arbiters of the law, free from the entanglements of politics. But work from Tom Clark, Professor of Political Science at Emory University, calls that idea into question, and shows why our new conservative Court may still follow public opinion.

The show is hosted by three professors at the Harris School of Public Policy: William Howell, Anthony Fowler and Wioletta Dziuda.

Listen on Apple Podcasts or wherever you enjoy podcasts.

Transcript 

William Howell:

I'm Will Howell.

Wioletta Dziuda:

I'm Wiola Dziuda.

Anthony Fowler:

I am Anthony Fowler. And this is Not Another Politics podcast.

Anthony Fowler:

We're back after a brief hiatus, we had just Another Politics podcast for a couple of episodes. And we're back with a real research paper this time. Although I could ask you guys what you thought of the town halls. We had competing town halls. How do you feel about QAnon?

Anytime you're asked something controversial, "What do you think about so-and-so controversial group or person?" And you could just say, "To the extent that they're opposed to pedophilia, I agree with them."

William Howell:

Yeah. That's what Trump said. He said they're really strong on pedophilia, like that's a point in their favor.

Well, Biden continues to refuse to answer this question about whether or not the Democrats are going to pack the courts. And in some ways that's the most intriguing thing that's happening right now. Trying to make sense of why he's taking that position and how it's likely to play out.

Tape [Joe Biden]:

I have not been a fan of court packing because then it just generates what will happen, whoever wins, it just keeps moving in a way that is inconsistent with what is going to be manageable.

Tape:

So you're still not a fan?

Tape [Joe Biden]:

Well, I'm not a fan. It depends on how this turns out. Not how he wins, but how it's handled.

Anthony Fowler:

And it's raising lots of interesting questions about the relationship between Congress and the Supreme Court. What the Supreme Court is going to look like going forward. We might very well have a six to three conservative majority for a very long time on the Supreme Court. To the extent that this new court is going to be more out of step with public opinion. Is there any way to reel it in? Is that a good thing? Is that a bad thing? There's a lot of interesting stuff to discuss there. And Wiola, you spoke with Tom Clark from Emory who has a really interesting academic paper that's related to some of these issues.

Wioletta Dziuda:

Yeah. We talk about his paper from AJPS called the Separation of Powers Court Curbing and Judicial Legitimacy. In this paper, he basically asked the question whether an attempt by Congress to curb court by putting forward legislation, putting forward bills that actually would affect the power of the court, whether that has any effect on how the court rules.

So let me start with the easy question. What is court curbing?

Tom Clark:

Court curbing is a general label for attempts by political branches of government like Congress or the President to undermine the powers of the courts. And that can take a variety of different forms ranging from legislation to changes in the composition of the court to, in some sense, even nominations of Judges. Many of the proposals are absolutely insane. And so, they almost never pass.

Wioletta Dziuda:

Give me an example.

Tom Clark:

Well, so there's a very common, in fact, the most common form of court curbing is court curbing that I consider relevant to the composition of the court. And so that could be things like court packing, but it could also be things like to propose a committee that can remove Justices for bad behavior. Now the US constitution spells out very clearly that you can't do that.

Wioletta Dziuda:

Interesting. So do we have a sense also who introduces them? Is this mainly the majority party, the minority party? Is this influenced by whether the party who is majority is in the position of the current court? Do we have any sense of what's going on there?

Tom Clark:

Yeah. So there have been periods where these attacks have been led by democrats. There are periods when they've been led by republicans. And they mostly seem to be driven by what the current political issues that the Supreme Court is getting involved in, are. There were many attempts by republican members of Congress to attack the courts in response to issues related to same sex marriage, basic discrimination issues, when the republicans were in the minority, that continued when they became the majority in Congress.

Wioletta Dziuda:

So given that we are talking a lot in the media recently about yet another court curbing initiative, court parking, the question that we should ask is, is court curbing effective? Does it affect how the Supreme court rules?

Tom Clark:

I believe it does, even though the bills don't tend to pass, I believe that court curbing is effective because the Supreme court Justices, and I'm sure the lower court Judges as well, understand that members of Congress are proposing these bills precisely because their constituents are upset because the members of Congress who are there represent interests that are displeased with the court. And so for the Justices I should say, the concern is not, "Will this pass and become law?" The concern is, "We are getting out of line with what the broad contours of public opinion will support."

Wioletta Dziuda:

And why do you think that the Supreme Court actually cares about the public opinion? Especially if... I'm listening to the hearings that are happening as we speak in Congress. I don't necessarily get the sense that the Judges would like us to think that they care about public opinion. So, why do you think that that might be the case?

Tom Clark:

I think that there's a little bit of a paradox here, which is that the Supreme Court Justices, and lower court Judges as well, I'll talk about the Supreme Court as a stand in for Judges in general. The Justices are concerned first, that they are able to make decisions that are effective. And for a Judge, once you issue a ruling, there's not much more you get to, right? So, you rely to a large extent, on others to actually implement your decision. Now, elected officials and politicians and localities are going to do what's in their own interests. They maintain their position to stay in office. And so there has to be some force to compel them to comply with decisions that they don't like.

And one thing that political scientists who work in this area have long argued and thought is that one such force is that the public believes the Supreme Court is legitimate and its decisions ought to be obeyed. If I'm a local official thinking about not complying with a Supreme Court decision, if my voters see me willfully ignoring a decision by the Supreme Court that they perceive to be authoritative and legitimate and proper, even if they disagree with it, that would be bad for me. And so that's where the informational value of court curbing comes in, that the Supreme Court can use that to understand when the politicians, and by extension their constituents, are getting to a point where they're no longer really trustful of, or supportive of, the Supreme Court's authority.

Wioletta Dziuda:

Interesting. So let's talk a little bit about the data. In the paper you collect some data on court curbing and the behavior of the Supreme Court. How do you actually try to answer the question of whether court curbing is effective and what do you find?

Tom Clark:

The way that I measure court curbing is that I look for proposed legislation in Congress that has the purpose of restricting constraining judicial power. And I do that by, frankly, just reading through the history of all the bills proposed in Congress, there are various indices, mostly the journals of the house and the Senate, and the index proposed legislation under keywords. And so I go through and I find all of these bills, which costs me months of my life and induced me to now be wearing glasses after staring at microfiche in the basement of a library for months on end.

Wioletta Dziuda:

It's all in the public interest. So, thank you.

Tom Clark:

Yeah. That was not a fun summer. And then I use data on Supreme Court decisions. So in particular, I look at the instances in which they strike down legislation that was passed by Congress. So, when they declare laws unconstitutional.

Wioletta Dziuda:

And what do you find?

Tom Clark:

So I find that—

Wioletta Dziuda:

Big reveal.

Tom Clark:

Yeah. What I find is that when the members of Congress introduce a court curbing legislation, that the Supreme Court seems to exercise more judicial restraint in the following years as measured by the number of laws that they strike down. And so in a typical decade, we're looking at probably something on the order of one law every year or two more that might've been struck down as unconstitutional. And when you think about the magnitude of that effect, it is important to understand, it's actually fairly rare for the Supreme Court to strike down a law as unconstitutional. It always makes headlines and people who are observers of the court, but not necessarily scholars of the court, focus on that. Especially when I teach undergraduate students, they all want to take classes on judicial politics because they're excited about Roe vs Wade and Brown vs board of education.

And I explain to them, "You've got those two cases. What other ones do you have?" And now they have the same sex marriage case and maybe one or two other. And I say, "So we're going to devote a whole field of study to something that has happened four times in our history?" And they quickly realize, actually, these instances of these the big constitutional moments are actually fairly rare. And so, in a typical decade, the Supreme Court's striking down probably 25 to 30 laws, over a decade. That's not a lot. And so if what we're expecting is a 30% increase if court curbing weren't there, then that's actually a pretty big difference.

Wioletta Dziuda:

Let's talk about court packing. So, do you think this is something that democrats are putting forward as just a threat and they're hoping it's going to work the way it works in your paper? Or you think they might actually go through with this proposal? How do you see this play out, if you're willing to speculate?

Tom Clark:

Yeah, no, so I've been thinking a lot about the current episode and it's not clear what the Supreme Court does to extricate itself from the situation. If you are the Supreme Court, if you make a conservative decision, just to simplify things, you're going to anger a bunch of democrats and induce them to attack you some more, maybe pass court packing legislation. You make a bunch of liberal decisions, you're going to anger the republicans and induce them to criticize you and attack you, also. And continue the games they've been playing with judicial nominations, which will further exacerbate the political battle. And if the Democrats take over the Senate and the White House, I don't know what's to stop them from saying, "We have seen an abuse of the appointment system. We're going to go ahead." Right?

So you can accuse us of court packing, but Mitch McConnell has done court stacking, he's been quit stacking for four years. And we're just rectifying an abuse of power that the republicans committed. On the other hand, right? That might not be super popular. And if the democrats don't have both the white house and the Senate, then you could imagine just an absolute stalemate. If Mitch McConnell is still the majority leader next year and Joe Biden is the President, I can't imagine there are going to be any Judges confirmed. There's no reason to think that he's going to treat Joe Biden's nominees any differently than he treated Barack Obama's nominees.

And this would be a much less likely outcome, but if the democrats control the Senate and Donald Trump is the President, what's to stop them from saying, "We're going to follow the McConnell rules and just not confirm any of your Judges?" And so I think the way this ends is unclear, because there's nothing that I can see but more conflict ahead. And I don't know what that will do to the country.

Anthony Fowler:

So Tom spent all this time collecting this data. That's one of the more interesting, heroic parts of the paper itself, was just actually collecting all the data on efforts to curb the court. And one of the big things that you guys discussed was this observed correlation between attempts to curb the court and efforts by the Supreme Court to invalidate congressional laws. So let's talk about what's going on there. Tom has a very particular story. He has a model that I think essentially explains this pattern. So why would this bill that simply proposed, that everyone knows isn't actually going to pass or be implemented or have any effect, in the direct sense, why would that proposal nevertheless constrain the behavior of the Supreme Court in the following year?

Wioletta Dziuda:

So the important thing to take away from his story is that the bills do not have to be possible because the sole purpose of those bills is to signal, "Hey, you're out of step with what voter wants, and that might lead to bad consequences." But it's not a threat, it's just a signal.

Anthony Fowler:

Why don't we take these different pieces of the story, one by one, and start with the question of, is it obvious? Do we buy the fact that the court even cares about public opinion to begin with? These Justices are... They're appointed for life. They would have to do something really terrible to be impeached. Why not just do whatever you think is right? Why care what public opinion is and why care what Congress is signaling to you? And of course in the constitution, they're supposed to be insulated from politics. That was part of the design. So, that was the intention was they shouldn't care that much about public opinion.

William Howell:

So I liked this part of his argument. He's offering a richer characterization of Justices than simply presenting them either as neutral arbiters who rule about the constitutionality of laws quite apart from politics, that naive conception about what goes on within the judiciary or the more jaded perspective that they're pure partisans through and through. He says, "No, they're also inhabitants of a particular institution." And it's an institution that has certain assets. They are appointed for life. They do get to render a verdict that have real policy consequences, but they're also forward-thinking.

And they're forward thinking because they worry about the efficacy of their rulings. Issuing rulings that are routinely ignored as bad for business, right? And being bad for business is bad for the judiciary. It's also bad for their individual ability to advance a policy agenda. And so they have real incentives then, to pay attention to the larger political context, right? The reception that they're likely to get. And in that sense, they ought to pay attention to the content of public opinion. It would be foolish on their part to proceed blindly to the content of public opinion and just behave in ways that purely reflect their sincere policy preferences.

Wioletta Dziuda:

And I have to add that he does a lot of leg work. He talks to people, he tries to talk to Judges and to clerics and so on. And he does get the sense. He even has quotes that are saying basically this directly, then there is this fear among Justices that if they lose the support of the public opinion, then bad things will happen. Those bad things are not completely spelled out. And you can think that perhaps, maybe their rulings will be implemented, but perhaps eventually Congress would actually act and affect their ability to issue rulings or pack the court or whatever you want to do. So perhaps it's the fear of this eventual court curbing bill that will be possible and it might come, but definitely they express this fear of being completely out of step of the public.

William Howell:

There's a lot of other scholars who have shown in a more reduced form way, this basic relationship between judicial rulings and the content of public opinion. When public opinion leans left, so too does judicial rulings and you see that variation even within Justices. So to my mind, the harder part of his argument has to do with not whether or not the Supreme Court and the Justices that occupy it care about public opinion, but they depend upon Congress to inform them about the state of public opinion. And moreover, that what they look for are bills being introduced that would curb, right? The powers of the judiciary. That's the information. It's not through briefs or publicly available polls or what's in the newspaper or the protests that are happening on DC. It's the introduction of court curbing bills that gives them the information they need in order to figure out whether or not to pull back.

Anthony Fowler:

I have a hard time with that part of the story just for the reasons that you suggest, which is that if you wanted to know about public opinion, it'd be hard to think of a worst, noisier, coarser measure of public opinion.

Wioletta Dziuda:

Yeah. So, to be fair to Tom, he again has quotes from people who are affiliated with the judiciary saying this explicit of that we are a little bit insulated from the public and Congress knows more and so on. But I think I completely agree with you. I think there's a second element to that is, in his model, he treats congresses as a unitary actor, but in real world, those bills are introduced by either republicans or democrats. And we have pretty high prioritization in Congress. So presumably democrats are putting forward bills to, if they are signaling anything, they're putting forward bills to signal what their constituents thinks and republicans are putting forward bills about what their constituents thinks. So I don't know to what extent the signal would even tell us anything about the median voter.

Anthony Fowler:

So one possible interpretation is that it's not actually the signal of the public opinion that's doing the work here, but it is actually a signal of resolve in Congress to curb the court. Is it possible that what the court is really caring about is not so much, we don't want to be too far out of step with public opinion, but we don't want to upset these members of Congress who, even though they rarely do serious things that would curb the court, but maybe they would next time around really do something that would seriously curb us if we upset them too much.

William Howell:

There's another story, which is that, does it depend upon the actual follow through, but that suggests that what's happening is when the bills are introduced, what legislators are doing is they're also showing up on television and they're saying, these unelected, out of step Judges are trampling over our constitution and denigrating the best interests of Americans and they're out of step and they're something awful. And that is a fight, right? That kind of political fight does damage to the perceived legitimacy of the judiciary. And it's a fight that the Justice system cells can't speak back to because their legitimacy depends upon their notion of being neutral arbiters, right? They stand apart from politics.

So they can't speak back. And when you have a whole bunch of members of Congress hollering and screaming about this awful third branch of government, that's out of step, that does immediate damage. And it shapes the content of public opinion. It turns the public against the judiciary. And so, it's not that members of Congress are channeling public opinion, it's that they're shaping public opinion.

Wioletta Dziuda:

So I think I like this story as well. Although I think it would be a little bit skeptical because apart from the court parking that we are discussing nowadays, ad nauseum, I actually have never heard of a court curbing legislation. I don't recall a time where people were walking and talking about this. Can you see this is what I've introduced? So there's a third possibility that I actually would be leaning towards is that, yeah, the court really cares about the public opinion for the reasons we've discussed. Congress also cares about the public opinion.

So when the public opinion is dissatisfied with the rulings of the judiciary, both the court changes their rulings and Congress makes this posturing certain, the Congress people actually stand up and say, "Look how good I am. I'm actually trying to do what you want us to do. I'm trying to curb the court." And then when they run for reelection, they can talk to their constituency about this. And the constituency is not informed enough to actually realize that all these bills that they have introduced have really no possibility of impacting the court.

So I would think it's like this traditional, omitted, variable bias, which is it's the fact that the court cares about what the public opinion thinks that affects both what Congress is doing and what bills are being introduced.

Anthony Fowler:

Yeah. That is the classical omitted variables via story, yes.

One interesting thing about all of these stories that we've been talking about is that it's implicitly assumed that Supreme Court Justices are more or less behaving like we would think a legislator behaves. They've got their policy preferences. They have things that they would like to enact. They know that they can't go too far from public opinion because they'll lose legitimacy. And so they're trading off, "What's my ideal point versus what is Congress going to let me get away with?" That's completely against the way that we publicly talk about Supreme Court Judges when John Roberts was in his confirmation hearing, here's John Roberts saying, "I don't do any of that."

Tape [John Roberts]:

Judges are like umpires. Umpires don't make the rules. They apply them. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Anthony Fowler:

And here's Amy Coney Barrett in front of the Senate, again, saying, "I'm not going to answer any questions about my ideology."

Tape [Amy Coney Barrett]:

I, as a Judge, have an obligation to respect and enforce only that law that the people themselves have embraced. As I was saying earlier, it's not the law of Amy. It's the law of the American people.

Anthony Fowler:

Well, "I'm just a good Judge. And I just do what the law says."

William Howell:

Yes, and then the critics say, justifiably, "What a bunch of nonsense. We know what you are, both of you. The two that you've just named, is that you're conservative. We know that you lean right." And there's no better predictor of judicial decision making at the Supreme Court, then estimates of the Justices ideology, which can be understood quite apart from their reading of a constitution. All you need to know is that she's conservative. And then you got a lot of purchase power and figuring out how she's actually going to rule down the pike.

But that both of those are anemic characterizations, enter Tom Clark to say, "Hey, none of this is us. Let's talk about legitimacy and concerns about the institution and wanting to forestall public criticism or appearing out of step with the public." Enter all that into the mix. And I think that you're right, Anthony, that then we have a sense of them not just as pure partisans or just as neutral as umpires in a baseball game, but as richer political actors.

Wioletta Dziuda:

And there was actually something interesting in the hearings the other day. I think it was Kamala Harris who asked Amy Coney Barrett, whether the consequences of the law affect the verdict.

Tape [Kamala Harris]:

So my question is in deciding whether to uphold government action, do you currently consider the consequences of your rulings on people's minds?

Wioletta Dziuda:

This was the very moment where she answered the question.

Tape [Amy Coney Barrett]:

Well, Senator Harris, that's part of the decision of every case.

Wioletta Dziuda:

You can think about the consequences to the legitimacy of the court as being ones consequences that they actually have in mind when they are making decisions.

William Howell:

It is true, but I think that if you were to sit down and ask Judges or Justices, "Hey, do you care about the content of public opinion?" Right? They'd all say, "No," they'd say, "No way," right? "We just pay attention to what the law says, what the constitution says, full stop." Right? But that doesn't mean that public opinion isn't hugely important, precisely because their perceived legitimacy rides on the public perception that they stand apart from politics. That's why they wear the robes. That's why we have to stand up. Right? When they enter their chambers. It's that they're playing this part.

And so, you were earlier, Wiola, citing the quotes that Tom was able to track down. We ought to look upon those quotes with some skepticism in that, not just because they're anecdotal, but because Judges and Justices have all kinds of incentives to present themselves in a certain way, in order to maintain their legitimacy. If we were to do a big survey of Judges and Justices and say, "Do you care about public opinion?" Overwhelmingly, they'd come back, "No," they'd say, "No," but that doesn't mean that Tom is wrong. That, in fact, it's actually vital.

Tom Clark:

It's worth pointing out, there is a big disconnect between the way that Supreme Court Justice are discussed in the news and in public life and the way that most political scientists would discuss Supreme Court Justices. We do often, without even thinking about it. We just assume that they have their own policy agendas. You might ask a Scalia or a Roberts. I only care about the direct wording of the law." Or another one might say, "I only care about the original intent of whoever crafted the law." Another one might say, "Well, I really just care about precedent," and so on. But of course, the kinds of cases that go in front of the Supreme court are the kinds of cases where the precedent is ambiguous or the original intent was ambiguous, or there's all kinds of competing considerations because only the most interesting cases end up in front of the Supreme Court.

And so it can't really be the case that they're just following the law, because we wouldn't have so many five to four decisions. And that case probably wouldn't have even made it to the Supreme Court if the law was so straightforward. Right? So, what does explain a Judges decision? It can't just be the direct meaning of the law. It's got to be the case that some other personal values or something factors into it. Otherwise, we wouldn't get so much disagreement on the court and we wouldn't care so much who's on the court.

William Howell:

Another point that's relevant here, that's related, is that the adaptive behavior by the court to changes in court curbing behavior by Congress need not be made by every Justice. You could have eight of the nine Justices continuing to rule as they always would rule. And it's that fifth one who would make a difference, that median Justice that says, "Whoa, whereas before I would vote to overturn this law, having observed in the previous period all this court curbing activity, I'm now going to pull back." Which would be, again, perfectly consistent with Tom's findings. Because it's about a reduction in the number of laws that are actually overturned by the courts, not wholesale changes in voting behavior by all the Justices that constitute the court.

Wioletta Dziuda:

Yeah. And there's some work actually by Tom and his co-authors that look a little bit at the question of whether we see different ruling when the Judge is pivotal for the decision or not. And it's possible that overall, they try to follow their judicial philosophy and they try to put their ideological differences aside and so on and so forth. Although, the arguments of Anthony are completely well-taken and agreed to, but only when they actually have this pivotal role where their vote matters for the final decision, they start taking all these additional considerations into account, which might be their perceived legitimacy and the possible future overturning of their independence by the Congress.

William Howell:

Okay. So can we bring this back to this moment of hyper anxiety, right? There's all kinds of worry on the left that we're about to get a six to three Supreme Court leaning decisively in the conservative direction and decisively out of step with public opinion and that then next year, democrats, should they get control of Congress, will pack the court. And we're going to end up for this tit for tat over the next 20, 30 years strategy, wherein in the year 2050, we're going to have 178 members of the Supreme court. Doesn't this paper suggest we're probably not going to go down that road? That the court is going to recognize it's out of step and already has reason to not fully indulge its own sincere policy preferences, and moreover, the mere introduction and mere consideration of these bills is going to induce them to restrain themselves even more.

So while out of step, in terms of their composition of larger public opinion, they are not going to go full steam and just undo every bill that they don't like, that they're inheriting.

Wioletta Dziuda:

Yeah. So, I'm actually looking forward to the ruling on Affordable Care Act because during the hearings, democrats really made a big deal out of this upcoming case and they really express their opinion that they really think it's very important for the public, so they send this huge message to the public. It's very important for you guys to have the Supreme Court not strike down the Affordable Care Act. So in essence, that gives the court an opening to make peace with democrats. If they actually don't strike it down, democrats committed themselves to taking this seriously.

I think it would be hard for democrats to now turn around and say, "Oh, but the court ruled with us on this case that we really care about, but we still don't like the court." I think then their attempts of curbing the court, packing the court, and so on, will not be perceived favorable by the public. So I'm super excited what will happen. And I think actually, that might be our way out of this war.

Anthony Fowler:

I like that story a lot. I think that's really interesting. And we should pay close attention to how the court makes some of these early decisions, especially the new court, the 6 to 3 court. But on the other hand, maybe what democrats really care about is sanctioning Mitch McConnell and republican senators for their bad behavior in 2016 and not even giving Merrick Garland a hearing. And it's hard to think about both of these things at once, right? Maybe the democrats both want to sanction the republicans in the Senate and get a better equilibrium going where our discussions about Judges are a little bit more peaceful and civil and so forth.

But also you care about constraining the court. It's hard to do either of those things well, but that seems like a complicating factor here, with Biden saying actually he might want to pack the court just because of the bad behavior by the republicans in the Senate, regardless of what the court actually does.

William Howell:

Well, in what way do you think that punishing McConnell would restore a better equilibrium? One way is to say, it will keep you from doing what you did in 2016. The alternative is to say, you've just expanded the arena for the fight to happen, to now include court packing. And so when you regained control, right? If we increase it from 9 to 13, you should increase it from 13 to 17. And we're just going to get this ratchet effect.

Wioletta Dziuda:

I don't think there's a way to restore this good equilibrium that we had before. If it was good. I think you're right. We are heading towards a new, bad equilibrium. What I'm hoping is that they don't have to go that route because they have this court curbing power that sort of comes a little bit from Tom's paper. And I hope that they do. And I hope that this is going to be reflected in the ruling, by the Supreme Court on the Affordable Care Act.

William Howell:

That's what hopeful that comes from the paper. It isn't just about packing the court. It's all kinds of things that we can consider. There's a broader range of responses we can imagine, and that we don't actually have to follow through on them. We can simply begin to talk about them to criticize the courts and that will have the effect of reigning in their ambitions.

Anthony Fowler:

Do we want it to be the case? We're talking about it now is if we want it to be the case for the court to be constrained by public opinion. And presume of some of the framers of our constitution was we want a branch of government that is completely untethered from public opinion and is going to do what is right. Sometimes the bright principal thing is not what public opinion was. Sometimes there are civil liberties that need to be protected that the median voter doesn't care about, but we have the Supreme Court that is supposed to look out for them.

So how do we feel about that? If I want to play devil's advocate, I might say I'm disturbed by the story, because I would like it to be the case that the court really is full of these principled Justices who are going to be looking out for the best interests of the law and certain principles they care about protecting, even if the public is way out of step with them.

William Howell:

I think that's exactly right. I completely agree with you. It's hard to put a normative spin on the value of these results, as soon as you introduce those kinds of considerations. And also, I'll say, because the models that he's estimating are simply looking at the number of court curbing bills introduced how in one period, how that predicts, how that correlates with, the number of laws that are overturned on the next. And there's no attention to the composition of those laws, the merits of those laws, the extent to which those laws might be consistent with, or not, the kinds of principles that you would want to hold a court responsible for upholding. And so, without that information, it's hard to know how to take the findings that Tom has put forward, how they speak to the concerns that you've just raised.

But there is, I think, a frustration that I have with these hearings is their performative qualities. They're pretending as if they don't have their own personal views about these matters and that even if they did have personal views, that they wouldn't bear upon their ruling and that they are immune to influence from the larger public. And if what we're looking for in these hearings is a clear-eyed assessment about how a Judge or Justice is likely to behave once she or he is appointed, that some candor would be valued, but instead we've got this charade that's being put on.

Hey guys, it is almost seven o'clock and we need to get dinner. And I'm wondering what your bottom lines are.

Anthony Fowler:

Well, I liked the paper that we read and I thought it was interesting. And I feel like I learned a lot from it. I buy that there's a really interesting empirical pattern that Tom has uncovered. I'm not convinced that his story is necessarily the only story that explains that empirical pattern, but nevertheless, it's interesting. And it does seem to reveal the court. And it does reveal that the court is thinking pretty strategically about these things when they're making these decisions. So I came away fairly convinced on those two points and I think that gives me a new, different, interesting way to think about these upcoming fights that we're going to have over the Supreme court.

Wioletta Dziuda:

Yeah, I completely agree with Anthony. I think this is one pretty solid finding of this paper that the Supreme Court seems to be affected one way or another, by the public opinion. And that, again, puts the hearings in a very different light and puts the importance of having more conservative or less conservative court in a different light. Not all is lost if we lose the battle on nominations, but we still have some way of affecting what the future rulings will be.

William Howell:

And I agree with all that as well. The only thing that I would add is that it also opens up in a way that's interesting and provocative, the possibility that the things politicians do that don't yield laws, nonetheless, are consequential. I think we're accustomed to thinking bills that going nowhere is just about raw politicking, raw just about position taking, and they don't have any broader lasting import. And this suggests that they may well, that you see people who are elected for life or appointed for life, nonetheless adjusting their behavior in light of what Congress is merely considering, not actually enacting, but merely considering suggests that our politics are richer than we thought.

Thanks for listening to Not Another Politics podcast.

Wioletta Dziuda:

Our show is a podcast from the Harris School of Public Policy, and it's produced by Matt Holdup. Thanks for listening.