This study elaborates a theory of the Court’s responses to the President’s power to control the implementation of its cases. The central idea is that in certain cases, the Court must be aware of how the President and executive branch will be implement those cases, and will alter their decision-making ex ante to reduce the probability of disobedience. This study finds that the Court is more likely to rule in favor of the federal government in lateral cases, as the President grows more ideologically distant from the Court median. Then this study investigates the mitigating and exacerbating factors in this relationship, finding that executive orders sharpen the effect of this threat on Court behavior, and that the effect is conditional on how long the President has been in office, and whether the President is in the last year of the second term.
Many cases that the Supreme Court hears require little in the way of direct executive involvement. But in cases where the executive branch implements policies created by the courts, signals of defiance should concern the Court.
In the first section of this chapter, I develop a theory of Court behavior under conditions that would favor executive non-implementation. Next, I subject the theory to a battery of empirical tests. In the third and fourth sections, I develop and test a theory of conditional effects: the political factors that exacerbate or mitigate the concern of the Court in cases where the executive branch is responsible for implementation.
These effects include the number of executive orders that a President has issued in lateral issue areas, as well as the duration of the President’s time in office, and the presence of an election year. My future research will expand this investigation of conditional effects into other political environments, and explore the Court’s behavior in non-federal lateral cases. The theory will be somewhat different here: while the Court worries over the implementation of federal-lateral cases because those cases depend upon the power of the executive branch, in non-federal cases, the Court may have to rely on the federal government as an ally to enforce compliance by other government authorities, much like the judicial branch’s failure to enforce desegregation on their own. Failure to secure this compliance can leave the Court weakened in the public eye.