The Supreme Court and Congress: Information,Threat,and the Separation of Powers

Abstract

Separation of powers research concerning the Supreme Court focuses on when and how the political branches can constrain the Court. Recent work theorizes that the justices are willing to defer to the legislative branch in order to protect the Court’s institutional legitimacy, arguing that it’s not the threat of specific congressional override that ‘checks’ the Court. Rather, broader threats fulfill this function – threats in the form of court-curbing bills and eventual laws. I reexamine the assumptions and key operationalizations of these institutional maintenance frameworks, and seek to parse threat conditions that can produce legislative retribution away from the more general and non-legislative threat environment of political criticism. To do so, I utilize a type of non-legislative House floor speech called one-minutes, revealed by recent research to be a potent indicator of constituent and party concerns, even more closely reflecting public priorities than committee work or bill introduction. My results indicate that the Court is sensitive to this broader environment of political criticism and praise – as operationalized through congressional one-minute speeches.