The President, the Bureaucracy, and Majoritarian Judicial Review

• In Event: Independence and Influence in Federal Judicial Decisionmaking

Abstract

Abstract: Many scholars argue that the U.S. Supreme Court is majoritarian in nature, striking or upholding laws to advance the policy goals of the president and Congress. While rarely recognized as such, these majoritarian theories of judicial review are a subset of the principal-agent models in the bureaucratic politics literature. Elected officials, most notably the president, may rely on the Court as an agent to achieve policy goals. But the existence of the bureaucracy leads to an important question: given that the president can rely on bureaucratic agencies to advance policy goals, when would Court action ever be needed by the president? I create a new theoretical model that shows a principal may not choose to entrust an agent with a policy decision when the costs of reigning in that agent are too high relative to other actors. I then apply it to the decision to rely on the Court or a bureaucratic agency; the Court is an undesirable agent compared to a cabinet department due to its high level of independence but may be a desirable choice compared to an independent agency. I then test my claim by analyzing the propensity of the Court to strike down important federal statutes from 1949-2011. The analysis reveals qualified support for majoritarian theories of judicial review: the Court only invalidates laws in a majoritarian manner when the bureaucratic agency implementing the law is relatively independent.

Author

• Garrett Vande Kamp, Texas A&M University