Nancy Staudt (Northwestern University Law School), Rene Lindstat (Stony Brook University), and John O’Connor (Northwestern University) have posted on SSRN an interesting new article, entitled “Judicial Decisions as Legislation,” see here. The article examines congressional response to judicial decisions, in particular decisions of the United States Supreme Court. The article concludes that, though Congress is sometimes hostile to Supreme Court decisions, there are a number of occasions when Congress is also quite supportive, including in areas that many believe the Court lacks institutional competence, such as tax and intellectual property. Equally interesting, the article advances the argument that the Court, in granting certiorari on and deciding certain (especially statutory) issues, plays an important role in setting the agenda of Congress. The article represents an important counterargument to the common belief that Congress often engages in court-curbing in response to unpopular judicial decisions, a claim that has been advanced in the academic literature for nearly forty years.
In this week’s academic round-up, I would like to recommend a book by Keith Whittington (Princeton University Department of Politics). He released a book in March of this year entitled “Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History.” Among other things, Whittington examines how political forces, most notably the Presidency, impact the expansion of judicial power. What makes this an interesting book is that Whittington combines history and constitutional theory to support his thesis about the role of Presidential politics in shaping judicial power. There is way too much in this book to discuss in just a single academic round-up post, but I recommend reading this book even if you disagree with its fundamental arguments.
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