Anticipation and Retaliation: The Impact of the Supreme Court onCongressionalDecision-making Open Access

Blackstone, Bethany (2009)

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Anticipation and Retaliation: The Impact of the Supreme Court on Congressional Decision-making

By Bethany Blackstone I explore the interaction between Congress and the United States Supreme Court. First, I consider the impact of anticipation of Supreme Court action on the decision of Congress to pass legislation. I hypothesize that under certain conditions (characterized by the pref- erences of the actors within each institution and the location of existing policies), Congress will refrain from enacting legislation because of the anticipated action of the Supreme Court. I find little evidence to support this hypothesis. Second, I assess the ability of Congress to respond to and reverse the impacts of the Court's constitutional decisions through the passage of ordinary legislation. I find that members of Congress frequently propose legislation that responds to the Court's constitutional decisions. There is sub- stantial variation in the intended impacts of responsive bills that has been ignored in existing research. While some responsive bills attempt to wholly reverse the legal and policy implications of the Supreme Court's constitutional decisions, most are narrower. Many responses attempt to modify policy within the legal confines defined by the Court. I find that responsive legislation that attempts to completely reverse the legal doctrines announced by the Supreme Court are significantly less likely to be passed than legisla- tion whose impact is limited to modifying public policy. An analysis of constitutional challenges to responsive legislation in the federal courts reveals that Congress is gener- ally successful at locating responsive policies that survive judicial scrutiny. I conclude that the relationship between Congress and the Supreme Court is less confliictual than is frequently assumed in the separation of powers literature.

Table of Contents


1. Introduction 1

2: Theory and Literature Review 6

3: Beginning at the Beginning: The Decision to Legislate and the Separation of Powers 43

4: The Decision to Pass Responsive Legislation 84

5: The Substance of Responsive Legislation 107

6: The Finality of Responsive Legislation 176

7: Conclusion 211

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