A Stronger Branch: How Insecure Majorities Empower the Supreme Court

• In Event: Balancing Acts: The Supreme Court and Interbranch Politics

Abstract

In 1980, the U.S. Supreme Court decided Mobile v. Bolden. It ruled that the U.S. Constitution and the Voting Rights Act of 1965 did not ban the effect of racial discrimination in electoral systems, only purposeful and provable discrimination. Two years later, Congress responded and reauthorized the VRA with an amended Section 2, which allowed for the consideration of discriminatory effect in electoral changes. It was passed with large, bipartisan majorities in both houses and was signed into law by Ronald Reagan. The 1982 amendment effectively overturned the Supreme Court’s decision and established a new legal standard.

In 2013, the U.S. Supreme Court decided Shelby Co. v Holder. It ruled that the existing coverage formula of the Voting Rights Act was unconstitutional, effectively ending Section 5 preclearance enforcement. The next year members of Congress from both parties responded to the ruling by introducing an amendment to the VRA that would establish a new coverage formula and reinstate Section 5 preclearance. It died in committee. It was reintroduced in 2015 and 2017 - It did not make it out of committee either time. What changed?

This paper examines how years of “insecure majorities” in the U.S. Congress have affected the relative power of the U.S. Supreme Court in the contemporary American government. A Stronger Branch looks at this separation of powers question from two institutional perspectives: 1. How does Congress respond to judicial invalidation of federal law, and how has this changed over time? 2. How does the congressional reaction affect the effective power of the Supreme Court’s decisions? This project combines insights about partisan competitiveness and cooperation from congressional scholarship together with judicial behavior and separation of powers research to better understand the power of the “weakest branch” in contemporary politics. Using a multi-method research design and contributing an original data set of Supreme Court constitutional and statutory decisions over the past 50 years, this paper analyzes a critical dynamic in American government and alters our understanding of the effects of contemporary partisanship and polarization.

Author

• Sam D Hayes, Trinity College