Why Do Courts Uphold or Strike Down Executive-Branch Policies?

• In Event: Poster Session: State Politics and Policy & Law and Courts
  In Poster Session: Poster Session: Law and Courts

Abstract

Using a new dataset of hand-coded Supreme Court and D.C. Circuit Court Opinions, I test competing explinations for why justices uphold or strike down policy made by executive-branch agenices. Beyond ideological voting, the explanation offering the most empirical leverage is that higher-profile policies gain public legimacy and are thus less likely to be overturned.

First, I investigate the conventional wisdom that courts are more likely to uphold federal agency policies made through notice-and-comment rulemaking as implied by Chevron and Mead jurisprudence. I find that Supreme Court Justices have significantly different preferences for deference, but, overall, justices are actually less likely to show deference in rulemaking cases. However, the evidence does not suggest that this is due to justices voting more ideologically due to the greater stakes in rulemaking cases. I then investigate potential selection effects at the circuit court and certiorari stages that could cause rulemaking cases to lose at the Supreme Court. The results offer no evidence that deference differs between circuit courts and the Supreme Court. While the Supreme Court may disproportionately opt to review rulemaking cases, it does not appear to do this in order to systematically discipline lower courts. Finally, I examine elements of the policy process itself that may affect judicial review. I find that greater participation in rulemaking correlates with rules being upheld. While justices rarely acknowledge public participation and attention as affecting their decisions, this explanation is consistent with theories that justices value the reputation of the Court.

In addition to assessing theoretical explanations for why justices may vote to uphold or strike down agency policy, these new data allow me to replicate, expand, and update empirical work on the strength of deference as a jurisprudential regime over time. Landmark studies debating jurisprudential regime theory are based on datasets that end in 2000. In the decades since, changes in the judiciary have led many legal scholars to speculate that the Chevron doctrine may no longer shape judicial decisionmaking. With over two decades of additional opinions and dissents coded, my data allow me to reassess jurisprudential regime theory alongside alternative explanations for judicial behavior.

Author

• Devin Judge-Lord, Harvard University