Michael A. Zilis

Stepping on Congress

Legislative enactment is only one step in the life of a law. How a law shapes public life after enactment is frequently the result of whether the judiciary interprets the provisions contained in a law and how courts reconcile provisions within and across laws. But the factors that determine whether the judiciary ends up playing such a role are not well understood. We investigate why the courts, through statutory interpretation, address some major laws but not others and why some laws are addressed soon after enactment, while others are on the books for years before they reach the judicial branch. Our evidence shows that conditions at the time of enactment, plus features of the law, play a major role in determining whether, and when, a law reaches the courts. More specifically, both divided government and disagreement between the two chambers increase the likelihood that the courts will address significant laws.

Minority Groups and Judicial Legitimacy: Group Affect and the Incentives for Judicial Responsiveness:

This paper introduces a new perspective into the literature on judicial legitimacy by examining the incentives for courts to cater to a popular majority and offering a novel model of legitimacy that has consequences for judicial responsiveness. The account integrates into the literature classic research on how strategic social groups shape public opinion. I theorize that citizens use their perceptions of the judiciary’s support for various social groups as a means to assess the institution overall. From this insight, I derive specific expectations about the conditions under which the Supreme Court’s protection of minority groups like gays and immigrants can damage its legitimacy. Using national survey data, I demonstrate that dislike for the beneficiaries of recent Court rulings systematically diminishes the institution’s legitimacy. The influence of these group-based considerations shapes individual-level attitude change and can be observed at various points in time.

The Conditional Effectiveness of Legislative Threats: How Court Curbing Alters the Behavior of (Some) Supreme Court Justices

The separation-of-powers literature focuses on how the preferences of one branch constrain the behavior of its counterparts. Yet, in much of this work, scholars do not address how responsive behavior varies across particular members. Focusing on Court curbing legislation in Congress, we develop a model of heterogeneous responsiveness. Our theory identifies two distinct mechanisms that underpin responsiveness in judicial behavior, implying that the chief justice and the most moderate (swing) justice are more likely than their colleagues to adjust their behavior in response to external threats from Congress. We find that these two justices are significantly less likely to vote to invalidate legislation than their colleagues during periods of heightened Court curbing and provide evidence that distinct mechanisms shape their behaviors. In addition, we offer justice-specific evidence using a pre–post promotion analysis, demonstrating that Justice Rehnquist became responsive to Court curbing only after becoming chief justice. Our model highlights the micro-level underpinnings of judicial responsiveness to inter-institutional politics and, most broadly, speaks to the need for separation-of-powers models to differentiate the preferences of individual political actors when seeking to understand inter-institutional responsiveness.

Disagreeable Rhetoric and the Prospect of Public Opposition: Opinion Moderation on the U.S. Supreme Court:

Elite rhetoric is an important aspect of democracy, and understanding why elites alter their rhetorical tone is vital to understanding the nature of public–elite interaction. In this paper, we identify the conditions under which insulated elites respond to public opinion by changing the amount of disagreeable rhetoric they emphasize. We examine Supreme Court opinions and theorize that the majority limits the use of disagreeable rhetoric—language with harsh, unpleasant, or negative connotations—in salient cases with the intention of dulling public opposition to rulings. We test our expectations on two levels, the first using a broad measure of public mood on a large sample of cases and the second using a small sample with issue-specific public opinion measures. We find that as public opinion diverges from the Court, the majority tones down its disagreeable rhetoric, but only in salient cases.

Blurring Institutional Boundaries: Judges’ Perceptions of Threats to Judicial Independence

The legislature wields multiple tools to limit judicial power, but scholars have little information about how judges interpret variant threats and which they find most concerning. To provide insight, we conduct original interviews regarding legislative threats to courts with over two dozen sitting federal judges, representing all tiers of the federal judiciary. We find that judges have a nuanced understanding of threats and tend to identify components of legislative proposals that threaten formal institutional powers as more concerning than those challenging policy set by judges. This distinction has broad implications for our understanding of judicial behavior at the federal level.