Measuring Court Curbing in the U.S. States

• In Event: Separation of Powers and Interbranch Relationships

Abstract

Not all court-curbing measures are the same, though much of the extant literature treats them as fungible. This paper develops a measure of court-curbing intensity that challenges the assumption that all court curbing is created equal. This novel measure of court-curbing intensity weights court-curbing bills in state legislatures based on characteristics that arguably will garner the attention of members of the state judiciary. These characteristics include, for example, the parts of court operations targeted, bill progress through the state legislative process, the number and type of courts affected, and whether the bills target court institutions or respond to specific court decisions or policies. I construct a comprehensive dataset of court curbing in the American states, with state court-year observations for the 2008-2018 period. Using this original measure, I then analyze the effect of legislative court-curbing activities on the behavior of state court judges to demonstrate the utility of a more nuanced measure of court-curbing for better understanding this important instance of the separation of powers in action.

Author

• Michael Anthony Catalano, Binghamton University, SUNY