Judicial Review, the Long-Run Game: An Exploration of Endogenous Institutional Change at the U.S. Supreme Court

Abstract

This paper argues that the United States Supreme Court has engaged in a long-run project to expand its political influence by expanding the power associated with constitutional judicial review. The Court has recognized that its standing in the American separation-of-powers system depends critically on the ease with which other political actors can effectively nullify its rulings. Accordingly, the Court has sought to increase its authority by increasing the costs over such overrides with a special focus on increasing the public backlash against such efforts. To do so, the Court has sought public legitimacy by insisting on the existence of a distinction between law and politics, and issuing decisions it describes as "law" and that it hopes will be politically palatable to the general public. I explore the Court's use of such a long-run strategy using three case studies: Chief Justice Marshall's successful effort to capture constitutional interpretation for the Court; the Court's abandonment of the Reconstruction Amendments; and the Court's reversal of course regarding its ability (or willingness) to consider redistricting disputes.

Keywords: U.S. Supreme Court, judicial politics, separation of powers, judicial review, institutional change