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The Constrained CourtLaw, Politics, and the Decisions Justices Make$
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Michael A. Bailey and Forrest Maltzman

Print publication date: 2011

Print ISBN-13: 9780691151045

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691151045.001.0001

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Separation of Powers and the Strategic Constraint

Separation of Powers and the Strategic Constraint

(p.95) Chapter 6 Separation of Powers and the Strategic Constraint
The Constrained Court

Michael A. Bailey

Forrest Maltzman

Princeton University Press

Justices have considerable latitude to pursue either their personal preferences or their personal visions of the law. The danger is that the Court gets so far out of line from the rest of the political system that we see fundamental institutional showdowns that threaten the independence of the judiciary, such as the Court-packing controversy in the 1930s. If the elected branches influence justices, however, they can keep the Court in check, thereby attenuating such risks. This chapter tests whether the Court systematically yields to the elected branches. In particular, it examines whether individual justices vote differently when the constraints imposed by the executive and legislative branches are likely to be at their strongest. It focuses on the two versions in the literature: one in which the Court is constrained only on statutory cases and the other in which the constraint extends to all cases, including constitutional cases.

Keywords:   Supreme Court justices, judiciary, political system, elected branches, legal constraints, statutory cases, constitutional cases

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