The Separation of Powers, Court Curbing, and Judicial Legitimacy



This article is corrected by:

  1. Errata: THE SEPARATION OF POWERS, COURT-CURBING AND JUDICIAL LEGITIMACY ERRATUM Volume 60, Issue 1, E1, Article first published online: 20 October 2011

  • The author would like to thank Scott Ashworth, Chuck Cameron, Brandice Canes-Wrone, Karen Long Jusko, John Kastellec, Jeff Lax, Dave Lewis, Adam Meirowitz, Andrew Owen, Jim Rogers, and Keith Whittington for helpful comments and advice. The author would also like to thank the 21 anonymous interview subjects who contributed to this research. An earlier version of this article was presented at the 2007 annual meeting of the American Political Science Association, Chicago, and won the 2008 CQ Press Award from the Law & Courts Section of the American Political Science Association.

Tom S. Clark is Assistant Professor of Political Science, Emory University, 327 Tarbutton Hall, 1555 Dickey Drive, Atlanta, GA 30322 (


A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.