Da – Court Packing Notes

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Court Packing DA
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Martin et al ‘6 [Andrew, James Rogers, Roy Flemming, and Jon Bond; September 19; Professor of Political Science at Washington University; Professor of Political Science at Texas A&M University; Professor Emeritus at Texas A&M University; Professor of Political Science at Texas A&M University, Ph.D. from the University of Illinois at Urbana-Champaign; Institutional Games and the U.S. Supreme Court, “Statutory Battles and Constitutional Wars,” Ch. 1; RP]
But the large policy payoff is in constitutional cases. What does the ability of the president and Congress to attack— through overrides or other means— constitutional court decisions imply in terms of the costs the justices bear? If an attack succeeds and the Court does not back down, it effectively removes the Court from the policy game and may seriously or, even, irrevocably harm its reputation, credibility, and legitimacy. Indeed, such an attack would effectively remove the Court from policymaking, thus incurring an infinite cost. 3 With no constitutional prescriptions for judicial review, this power is vulnerable, and would be severely damaged if Congress and the president were effective in an attack on the Court. But even if the attack attempt is unsuccessful, the integrity of the Court may be damaged, for the assault may compromise its ability to make future constitutional decisions and, thus, more long-lasting policy.
To make predictions about constraints on the Court, these costs and benefits must simply be compared. When weighing the policy benefit with the negligible institutional cost of being overturned in statutory cases, the justices need not pay attention to the other branches of government. This is because statutory decisions are comparatively fleeting. Constitutional decisions, however, are a different issue. In these decisions, the justices are motivated by a large policy benefit, because constitutional decisions are those that can affect larger policy change. At the same time, these decisions can cost the Court as an institution if Congress and the president launch an attack. While the probability of such an attack is minuscule, a successful attack would effectively remove the Court from the separation-of-powers system. We would therefore expect justices to temper their unfettered policy preferences in response to the separation of powers in constitutional cases.

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