Policy Statements or Symbolic Politics? Explaining Congressional Court-Limiting Attempts

By Bell, Lauren C.; Scott, Kevin M. | Judicature, January/February 2006 | Go to article overview

Policy Statements or Symbolic Politics? Explaining Congressional Court-Limiting Attempts


Bell, Lauren C., Scott, Kevin M., Judicature


Despite a historic lack of success, members of Congress, motivated by the desire to express policy preferences and to represent the views of their constituents, continue to introduce bills to reduce or eliminate the power of the federal judiciary.

In September 2004, U.S. Representative John Conyers (D-MI) alleged that Congress was "engaged in an unprecedented assault on the Judiciary, the crown jewel of our constitutional system . . .By hamstringing, harassing, and weakening the Judicial Branch, these actions threaten to rob the Judiciary of its independence."' Conyers went on to detail a spate of "assaults" on the federal courts, including the introduction of multiple bills to remove the courts' jurisdiction over federal laws.

His remarks were particularly salient in light of passage in the House of Representatives of a bill designed to limit the federal courts' jurisdiction over questions related to the definition of marriage on July 22, 2004; although the bill ultimately failed in the Senate, it was more successful than previous efforts to limit the federal courts' jurisdiction. The measure was reintroduced in March 2005.

This article expands upon what is known about the relationship between the courts and Congress by collecting and analyzing individual-level data on a variety of congressional court-limiting measures introduced by members of the United States House of Representatives between the 93rd and 106th congresses.2 Inquiry is restricted to the House because the vast majority of courtlimiting bills originate there (132 during the period of study, as compared with 29 in the Senate). Three hypotheses are tested: that members of Congress introduce courtlimiting legislation to promote personal and public policy goals, to protect themselves electorally, and to represent their constituents. The findings indicate that more senior members of Congress as well as ideologically more conservative members introduce court-limiting legislation, and that such efforts are related to their constituents' levels of support for the federal judiciary.

Previous research

Previous examinations of congressional court-limiting efforts have fallen inta two broad categories: theoretical/constitutional inquiries3 and empirical descriptions and analyses, such as efforts to quantify court-limiting attempts.4 A few lengthier studies explore both the theory and practice of congressional limitations on the federal judiciary,5 while still others explore congressionaljudicial antagonisms from the perspective of the judicial branch.6

Additional inquiry by scholars of the legislative process into what motivates members' legislative activities provides a framework for examining legislators' court-limiting activities. For example, several studies note that members often make decisions about how to allocate their time based upon personal experiences and interests.7 Thus, members of Congress who feel strongly about matters before the federal courts might be inspired to punish the courts when they do not decide cases in ways congruent with members' a priori beliefs. However, members of Congress may view the introduction of a court-limiting bill not only as a mechanism for conveying personal displeasure with judicial decisions but also as a way to create policies in the public's best interest.

In addition to policy preferences, members likely have electoral reasons for deciding whether to offer court-limiting legislation. For example, one study found that more ideologically extreme members of Congress were more likely to vote to overturn Texas v. Johnson (1989), and that electoral considerations and district-specific factors were also important predictors of their votes.8 The linkages between members of Congress and their constituents are well documented, and it is clear that members of Congress are most likely to act when their constituents express stable, intense opinions on matters of public policy.9

Despite studies conducted by both legislative and judicial politics scholars into congressional efforts to limit the courts, previous work offers only a limited glimpse into the conditions under which Congress will consider reducing the power of the federal courts. …

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