You are here: Home » Opinion » Columns
Business Standard

T C A Srinivasa-Raghavan: Courts vs legislatures

OKONOMOS

T C A Srinivasa-Raghavan  |  New Delhi 

Do judges of the US Supreme Court keep in mind what the legislators want?
Here is further proof of how silly the Communists are when they oppose everything American. In which other country would you find a research paper* such as the one described here? It exhibits the one quality our Communists don't have: intellectual curiosity and vigour. In particular, I would draw attention to the section in this paper entitled "Theories of Congressional Behaviour". Perhaps "" over the next 100 years "" some Indian political 'scientist' will have a crack at developing a similar theory for the behaviour of MPs. (If Ajay Shah asks me nicely, I can give him exactly the data he would need for doing something like this. There is a lot of econometrics in it).
In any case, all MPs should read this paper, especially now that they are smarting over the Supreme Court poking them in the eye over the 27 per cent OBC quota thing. It might set their minds at rest, and certainly Somnathda will stop feeling continually persecuted. If the MPs want to persuade intelligent "" which they may not """" this paper shows how to go about it. It is a first rate example of how to examine legislature-judiciary and legislative-judicial relations.
The authors, Anna Harvey of the department of political science and Barry Friedman of the law school at NYU, set out to answer the following question: does the structure of political institutions in America constrain its Supreme Court? "Do the powers of the elective branches of government provide incentives for Supreme Court justices to be attentive to the preferences of elected officials?" In short, do judges of the US Supreme Court keep in mind what the legislators want? The popular answer is no.
"There appears to be a consensus that the Court is wholly unconstrained in its constitutional decisions." That is, the US Supreme Court puts the Constitution above political opportunism. At least, that is what the evidence to date suggests. Thus, the probability that the Court would strike down a liberal law went up hugely in the 1990s as a result of the 1994 congressional elections which brought in a lot of liberals while the Supreme Court remained conservative. But "prior to the 1994 congressional elections, the Court would have been quite hesitant to strike down liberal legislation enacted by the Congresses sitting between 1987 and 1994."
But, say the authors, this consensus may simply be the result of a selection bias. Researchers till now may have taken into account certain types of cases, which in any case have undergone a pre-selection because "the judges will have few incentives to accept for review those cases that challenge congressional laws that the Court's median judge thinks cannot be struck in the current political environment."
I don't want to give our MPs ideas but, according to the authors, there do exist institutionalised instruments in the US that can inadvertently persuade judges to keep in view what the politicians want, even where constitutional decisions are involved. For instance, "the Constitution gives Congress the power to regulate the Court's appellate jurisdiction; stripping the Court of aspects of this jurisdiction is frequently threatened by members of Congress who disagree with the Court's decisions" and "Where litigants are concerned, they too will not feel impelled to contest certain types of laws... Congress also has considerable discretion concerning the Court's budget. Although Congress cannot diminish the justices' salaries, it can fail to raise their salaries to keep pace with inflation..."
What might be happening is simply this. The Court refuses to try cases which the judges don't expect to be able to strike down. If the litigants also think so, they will not file such cases. The result is that the cases that have formed the sample till date are those whose outcomes "systematically understate the Court's responsiveness to the elective federal branches." To get around this problem, the authors decided to analyse statute-centered rather than case-centered judgments. They took all the laws passed by the Congress between 1987 and 2000, and saw what happened to them. And they found that "The Court is, in fact, constrained by congressional preferences in its constitutional decisions." In other words, it is a myth that the US Supreme Court ignores politicians. It applies the law as it stands but not invariably without constraint.
*Pulling Punches: Congressional Constraints on the Supreme Court's Constitutional Rulings, New York University School of Law, New York University Public Law and Legal Theory Working Papers No 56, 1987-2000, papers.ssrn.com/sol3/papers.cfm?abstract_id=1002626 - 27k

First Published: Fri, August 10 2007. 00:00 IST
RECOMMENDED FOR YOU