A Mere Machine

A Mere Machine: The Supreme Court, Congress, and American Democracy

Anna Harvey
Copyright Date: 2013
Published by: Yale University Press
Pages: 384
https://www.jstor.org/stable/j.ctt5vkwk1
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  • Book Info
    A Mere Machine
    Book Description:

    Introductory textbooks on American government tell us that the Supreme Court is independent from the elected branches and that independent courts better protect rights than their more deferential counterparts. But are these facts or myths?

    In this groundbreaking new work, Anna Harvey reports evidence showing that the Supreme Court is in fact extraordinarily deferential to congressional preferences in its constitutional rulings. Analyzing cross-national evidence, Harvey also finds that the rights protections we enjoy in the United States appear to be largely due to the fact that we do not have an independent Supreme Court. In fact, we would likely have even greater protections for political and economic rights were we to prohibit our federal courts from exercising judicial review altogether. Harvey's findings suggest that constitutional designers would be wise to heed Thomas Jefferson's advice to "let mercy be the character of the law-giver, but let the judge be a mere machine."

    eISBN: 978-0-300-19919-2
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. I-VI)
  2. Table of Contents
    (pp. VII-VIII)
  3. PREFACE: “A MERE MACHINE”
    (pp. IX-XVIII)
  4. 1 THE SUPREME COURT, CONGRESS, AND AMERICAN DEMOCRACY
    (pp. 1-34)

    Americans are routinely exhorted to take pride in their independent federal judiciary. Protected by life tenure and guaranteed salaries, federal judges in the United States are said to resolve disputes free from the political intimidation that exists in other, less fortunate, countries. The late Chief Justice William H. Rehnquist declared, for example, that “the performance of the judicial branch of the United States government for a period of nearly two hundred years has shown it to be remarkably independent of the other coordinate branches of that government,” and that “the creation of an independent constitutional court” was “probably the most...

  5. 2 THE SUPREME COURT, THE ELECTED BRANCHES, AND THE CONSTITUTION
    (pp. 35-76)

    Today many regard it as implausible that the federal elected branches in the United States exercise any meaningful checks on the federal courts. Some assert that the Constitution’s textual guarantees of life tenure and protected salaries create an “independent and powerful federal judiciary,” in the words of a prominent college-level textbook on American politics.¹ Others claim that, even if the text of the Constitution permits elected branch checks on the federal courts, the founders nonetheless intended to secure independent federal courts. Some point to the difficulty of coordinating cross-institutional action under the Madisonian constitutional design, arguing that this difficulty enables...

  6. 3 ESTIMATING THE EFFECT OF ELECTED BRANCH PREFERENCES ON SUPREME COURT JUDGMENTS
    (pp. 77-106)

    As we saw in the last chapter, the United States Constitution gives to the elected branches numerous powers to check the decision making of federal judges. Two of these powers, namely impeachment and appropriations, give a prominent role to majorities in the House of Representatives. The existence of these powers may give federal judges powerful incentives to defer to the preferences of elected branch majorities, perhaps particularly to majorities in the House.

    However, we rarely see the elected branches exercising their powers over the federal courts. As a consequence, the conventional wisdom is that federal judges in the United States...

  7. 4 THE PUZZLE OF THE TWO REHNQUIST COURTS
    (pp. 107-140)

    According to rigorous econometric studies of the Supreme Court, the justices do not alter their decisions in response to changes in elected branch preferences, including changes in the preferences of House majorities. A perfect example of this appears to be provided by the Rehnquist Court, which faced both liberal and conservative House majorities, while remaining consistently conservative itself. Presumably, had the preferences of those majorities mattered to the Court, we would have seen some changes in its decisions as those preferences varied. The Court should have pulled its conservative punches during its first eight terms, but then let those punches...

  8. 5 EXPLAINING THE PUZZLE OF THE TWO REHNQUIST COURTS
    (pp. 141-190)

    The econometric analyses of Chapter Three and the narrative accounts of Chapter Four present two entirely different pictures of the Rehnquist Court. The econometric analyses depict a Court that was consistently and stably conservative between 1986 and 2004, with the predicted probability that the Court would issue a conservative judgment ranging in a narrow band between .62 and .67. This probability remains unchanged by the 1994 elections; in these analyses the Court was as conservative in its pre-1994 terms, when its average predicted probability of a conservative judgment was .64, as it was in its post-1994 terms, when this probability...

  9. 6 ELECTED BRANCH PREFERENCES, PUBLIC OPINION, OR SOCIOECONOMIC TRENDS?
    (pp. 191-222)

    The estimates reported in Chapter Five suggest that, at least in cases involving constitutional challenges to federal statutes, the justices of the Supreme Court are surprisingly responsive to the preferences of majorities in the House of Representatives. This finding emerges even after taking into account the possible effects from other elected branch preferences, the justices’ own preferences, and case-specific factors that may affect the justices’ decisions. It is also evident across different samples of cases, different ways of measuring the Court’s judgments, and different ways of measuring judicial and elected branch preferences.

    This finding suggests that the Constitution’s provisions subjecting...

  10. 7 RESTORING THE COURT’S MISSING DOCKET
    (pp. 223-248)

    We saw in Chapter Four that many observers found the pre-1994 Rehnquist Court to be considerably more moderate than they had expected it to be, even as increasingly conservative justices replaced moderate and liberal justices. We now know that these observers were correct: at least in cases involving the constitutional review of federal statutes, the first Rehnquist Court was indeed significantly more liberal than it would have been, had only the justices’ preferences determined its judgments.

    Another thing observers noticed about this first Rehnquist Court was that it appeared to be taking increasingly fewer cases involving important public policy issues....

  11. 8 MISREADING THE ROBERTS COURT
    (pp. 249-263)

    We have seen that the widespread belief in the Supreme Court’s independence can give rise to very misleading expectations about its jurisprudence, particularly when the justices’ preferences diverge from those of majorities in the House of Representatives. These expectations may appear to be confirmed in quantitative studies relying on the subjectively coded Supreme Court Database judgment measure, when in fact that measure may simply be reflecting only the self-confirming power of our own expectations. Close observers of the Court who find its judgments not to conform to their prior expectations, or to the picture painted by these quantitative studies, can...

  12. 9 WHAT’S SO GREAT ABOUT INDEPENDENT COURTS, ANYWAY?
    (pp. 264-296)

    It is widely believed that the Supreme Court of the United States decides constitutional cases independently of elected branch preferences. If the evidence reported here survives further scrutiny, this belief is not correct. At least in its constitutional rulings on federal statutes, the Court is extraordinarily deferential to the preferences of majorities in the House of Representatives. By implication, given the position of the Supreme Court at the top of the appellate hierarchy, the same may very well be true of federal courts in the United States more generally.

    This empirical finding leaves us with a question. Are we better...

  13. NOTES
    (pp. 297-350)
  14. INDEX
    (pp. 351-366)