Supreme Court Shows Increasing Aggravation Towards Presidency

By Nethani Palmani | Mar 10, 2017 10:08 AM EST

According to conventional wisdom, the president enjoys considerable "win" over other litigants in the Supreme Court because of the central role of the presidency in the U.S. government, and the expertise and experience of the Solicitor General's office. However, new studies reveal that the conventional wisdom is out of date.

The historical dominance of the president in the Supreme Court reached its high point in the Reagan administration, which won nearly 80 percent of the cases. It has declined steadily since then and is especially observed in the recent presidential decisions made by U.S. President Donald Trump.

The presidency suffered its worst win rate in the Obama administration, reaching barely 50 percent, according to ABA Journal. The trend may be due to growing self-assertion of the Court and the development of a specialized private Supreme Court bar, that causes apparent ideological disagreements between the Court and the presidency.

One possible explanation for this is the Supreme Court has become more aggressive over the last three decades.  As its institutional self-confidence grew, it became increasingly willing to defy the executive as well as the Congress.

But why has the Supreme Court become more aggressive? Lee Epstein and Eric Posner's research published on SSRN traces the answer back to "polarization". In order to break the gridlock of polarization in the Congress, presidents have engaged in controversial unilateral actions, which have undermined their political standing in some cases.

With the tossed political branches, the Supreme Court no longer fear retaliation if it rules against them, as it has in the case of statutory challenges and executive actions. The action, therefore, raises questions about whether the Court is fulfilling its judicial function.

It is fair that the Supreme Court's aggressiveness toward the president comes from a place of worry and a sense of protectiveness towards imperial judiciary. But at the same time, it goes far to challenge of the imperial presidency. With the two utterly conflicting sides, the public continue to ponder what they should make of this phenomenon.

More Sections