chapter  11
14 Pages

Goldilocks and the Supreme Court: Understanding the Relationship between the Supreme Court, the President, and the Congress MICHAEL A . BAILEY AND FORREST MALTZMAN

The relationship of the Supreme Court to the president and Congress reflects a fundamental tension inherent in the judicial branch. On the one hand, the Court needs to be independent; disputes need to be resolved on their merits and not on the basis of political or economic power. Otherwise, those in power may be tempted to act above the law and, among other misdeeds, may perpetuate their control even when they do not have popular support. On the other hand, the Supreme Court cannot be too independent. If it is, justices may be imposing the views of nine individuals about law and policy on a nation of hundreds of millions of people. In short, the Court is a Goldilocks institution: it must be independent enough to protect democracy, but not too independent lest it threaten the ability of people to govern themselves. As the highest court in the land, the United States Supreme Court frequently finds itself pulled in both directions. The Court gets the most complicated, politically sensitive and high-profile cases and these are precisely the cases where justices should be independent. Nonetheless, we worry that justices may become disconnected from the will of the people and prevent democratic institutions from deciding important policy issues of the day. We focus on how the Court navigates its relationship with the elected branches. There are four mechanisms for elected branches to influence the Court: appointments, judicial deference, overrides, and expertise. We will consider each in turn. In contrast to those who believe justices are completely independent, we argue that there are layers of constraints on the Court and that each allows the national will to influence what the Court does. None is overwhelming and each mechanism has its own subtleties, but taken together it is clear the Court must be understood as it operates within a broader political and normative system.