Court Curbing in the Modern Era: Should Supreme Court Justices Really Worry About Attacks from Congress?

Abstract

Mounting evidence shows that U.S. Supreme Court justices are influenced by their fear of congressional attacks on the Court’s jurisdiction and basic institutional arrangements. But do these 'Court curbing' efforts present as serious a threat as the justices think? Using an original dataset, this article traces all congressional attempts to limit the Court’s power between 1954 and 2008. I find that while attempts to hurt the Court have been a regular part of Congress’s agenda, legislative successes in this area are exceedingly rare. This suggests that justices, like many commentators, may overestimate the real danger of Court curbing, and that the Court may be less constrained than generally assumed. I close with a discussion of the implications of these findings and suggestions for future research.

Keywords: Supreme Court, court-curbing, legitimacy, separation of powers