Congress and The Supreme Court-Preemptive Courtcurbing and Institutional Rivalry

Phillip H Marino


It has been clearly and empirically shown that the Supreme Court will retreat when faced with Congressional Court-curbing legislation that could undermine its authority and reduce its policysetting capacity. Why and when Congress will propose such legislation has remained a mystery. This paper seeks to solve this puzzle and argues that Congressional Court-curbing is often a direct attack
on a Supreme Court that Congress perceives as threatening to its policy-setting capacity. This paper also proposes and supports that members of Congress view the Supreme Court as an inherent rival and rely on the number of cases heard by the Supreme Court during a given session as a way of judging the relative threat of that Supreme Court to the policy-making power of Congress and the status quo of US government policy.


courts, law, policy

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