Equal Before the Law? Judicial Deference to Executive Power in the 50 States

Abstract

Judicial power and executive power exist in an interdependent relationship. Courts can invalidate executive action. However, various executive actors are charged with implementing judicial decisions. Courts are placed in a politically sensitive position when they must adjudicate disputes involving the executive branch because executive branch actors can work to prevent, or circumvent, the implementation of court decisions. Given this institutional tension, when do courts defer to executive branch actors? In this dissertation I examine the interaction of judicial and executive power using data from the fifty states. Examining the states allows for analysis of how variation in judicial and executive institutional design affects court decision-making on cases directly involving the executive branch. In cases that involve executive branch litigants, court deference to the executive branch will be significantly affected by the balance of power between political elites and the judiciary. The institutional and political power of political elites in relation to the judiciary influences court vulnerability to institutional retaliation and executive enforcement resistance. I explain that judges will be most supportive of executive branch activity in environments of high political elite control over judicial selection and retention, and in environments with institutionally powerful state executives. I use an original dataset of state supreme court cases involving challenges to state executive power between 1980 and 2010, and cases from the Brace and Hall State Supreme Court Data Project, to show how differences in state institutional arrangements directly influence whether courts rule in favor of executive branch actors in court. Results from my analyses show that judges are not only responsive to variation in political elite control over judicial selection and retention, but also that increased gubernatorial institutional control over the state executive branch produces a judiciary more deferential to executive branch litigants. In recent decades, state executives have gained many institutional privileges to manage executive branch activity and state policy-making in general. These same institutional privileges seemingly increase the court’s susceptibility to retaliation from political elites and reduce the court’s willingness to rule executive against actors in court.