Separation-of-Powers Games in the Positive Theory of Congress and Courts

Abstract

The hallmark of the new positive theories of the judiciary is that Supreme Court justices will frequently defer to the preferences of Congress when making decisions, particularly in statutory cases in which it is purportedly easy for Congress to reverse the Court. Alternatively, judicial attitudinalists argue that the institutional structures facing the Court allow the justices to vote their sincere policy preferences. This paper compares these sincere and sophisticated models of voting behavior by Supreme Court justices. Using a variety of tests on the votes of Supreme Court justices in statutory cases decided between 1947 and 1992, I find some evidence of sophisticated behavior, but most tests suggest otherwise. Moreover, direct comparisons between the two models unambiguously favor the attitudinal model. I conclude that the justices overwhelmingly engage in rationally sincere behavior.