Public Congress v. Private Courts: Understanding Interbranch Relations

• In Event: Separation of Powers and Interbranch Relationships

Abstract

In this paper we propose a new theoretical framework for understanding legislative-judicial relations. Specifically, we argue that legislatures many times operate in stereotypical “masculine” ways while courts more closely embody “feminine” stereotypes. Courts are required to act on anything that comes before them, they are typically a workhorse institution that gets little attention or praise, and they are designed to be passive rather than active. Conversely, legislatures are loud, public, assertive, and active, while also able to only address what they wish to devote attention to. One implication of this theory is that Congress will seek to shift contentious issues into the courts, in order to insulate members of Congress from blowback. They should be most likely to shift responsibility for issues that are 1) highly salient, 2) more complex, and 3) garner more attention from outside interest groups. We examine congressional activity across a number of issues for the 109th through the 114th Congresses, as well as different mechanisms of workload-shifting. Our findings speak not only to the role of the legislative and judicial branches in the national policymaking system, but also how these two institutions work in relation to one another.

Authors

• Lauren Hanson-Figueroa, Georgia State University

• Alexandra Piccirillo, Georgia State University

• Amy L. Steigerwalt, Georgia State University