Courts are pausing dozens of Trump administration actions—from mass firings to agency shutdowns. But does the judiciary have a real enforcement mechanism? Will public faith in the courts mean Trump faces consequences in elections and public esteem or will that faith wilt as the judiciary is just seen as another partisan institution? Amanda Driscoll, Michael Nelson, and Jay Krehbiel find that Americans have faith in the rule of law and respond well to courts that invalidate executive action—and partisanship does not seem to interfere. It’s a potentially optimistic story about the role that courts and public opinion may play in limiting democratic backsliding. But they all see risks in practice, as dozens of judges use arcane rules to limit the president while Republicans attack judicial branch oversight.
Guest: Amanda Driscoll, Florida State; Michael Nelson, Penn State; Jay Krehbiel, Buffalo
Study: The Efficacy of Judicial Review
Transcript
Matt Grossmann: Can public faith in judicial review a lawless executive? This week on the Science of Politics for the Niskanen Center, I’m Matt Grossmann. Courts are pausing dozens of Trump administration early actions from mass firings to agency shutdowns. But does the judiciary have a real enforcement mechanism? Will public faith in the courts mean Trump faces consequences in elections and public esteem? Or will that faith wilt as the judiciary is just seen as another partisan institution? This week I talked to three authors of a new Cambridge book, the Efficacy of Judicial Review, Amanda Driscoll of Florida State, Michael Nelson of Penn State and Jay Krehbiel of Buffalo.
They find that Americans have wide faith in the rule of law and respond well to courts that invalidate executive action and partisanship does not interfere. It’s a potentially optimistic story about the role that courts and public opinion may play in limiting democratic backsliding, but they all see risks in practice as dozens of judges use arcane rules to limit the president while Republicans attack judicial branch oversight. Our conversation could not be more timely. Michael, tell us about the findings and takeaways from the new book, the Efficacy of Judicial Review.
Michael Nelson: Sure. So coming out of World War II, countries around the world started writing constitutions that provided specific constitutional courts with the idea that if we put these institutions in place, they’ll be able to help to constrain the state. And part of the idea there is that if a constitutional court says that a government can’t do something, then the government faced costs if they do it. And this is something that the political scientists talk about all the time, but it actually hasn’t been tested that much.
And so what we did in the book is we used the COVID pandemic, which provided lots of opportunities for governments to do things that were constitutionally questionable, but in the name of public health to see how the public would respond if a constitutional court ruled that a court, or sorry, that a government couldn’t do something and then the government did it anyway. And what we find is that courts are only effective under particular circumstances. You need a court that the public thinks is independent, and you also need citizens that value the rule of law. And unless both of those conditions are met, the consequences for executives ignoring the court are pretty minimal.
Matt Grossmann: So Amanda, a lot of the book revolves around this concept of judicial efficacy and we know something about the formal powers of judicial review, and we also know about this amorphous idea that it’s relevant to the rule of law. So tell us about the role of judicial efficacy in that.
Amanda Driscoll: So we define courts as being efficacious when they can help to impose political costs on incumbents for contravening the rule of law for overstepping constitutional balance. And this is important to think about because thinking about courts broadly across space and time, there are lots of judicial institutions that are formally empowered that have the constitutional power to exercise judicial review, but it’s not always the case that these courts are able to really constrain the state in the sense of stopping incumbents from doing things that the constitution or statutory laws would prohibit. And so this is our way of thinking about when courts are effective at doing that.
Matt Grossmann: Jay, you wanted to add something?
Jay Krehbiel: I think, and one thing, maybe another phrasing is thinking about those political costs that Michael was talking about as well. And so just putting a point on that distinction between the legal costs of a decision that says, no, you can’t do something, or I think we use in the book from some other scholars mentioning the Pope used to be able to excommunicate people, and that wasn’t just a legal consequence, but there’s also a political cost. And so that efficacy coming to this idea of exacting political consequences on executives for contributing maybe in addition to legal ones, but we’re really focusing on that political cost aspect of it.
Matt Grossmann: So Jay, you outlined some mechanisms that might be useful for enforcing this. And a lot of them are in the elite, inter-elite space, but you focus on the public ones in this book. But I wonder how much of that is because it’s just easier to study the public consequences via these survey experiments, or if you actually think the public is the central player here.
Jay Krehbiel: And I think we talk about this some in the book about why we focus on the public and public attitudes, citizens’ attitudes or responses. And I think there’s a couple of good reasons to do that. One is that even if we’re thinking about the elites, elite responses, those are often at least going to incorporate the public in their own calculus. So if I’m a political elite who might want to have a response to how Sam in the opposition and have a response to how the government is handling a court decision, I’m likely to take into account what the public thinks. And so in that sense, the citizen’s attitudes are an potentially important factor, even in the inter-elite kinds of discussions. And then beyond that, thinking about how executives respond as well, or government officials might respond if their concerns say with re-election or those kinds of concerns, then understanding at least at a baseline how citizens react is an important aspect to take into account.
Matt Grossmann: Amanda, what is the baseline for the United States in terms of how much the public is supportive of the rule of law and the role of courts? And is this a attitude you think is fundamental that a lot of people have or that’s just about the political moment?
Amanda Driscoll: In short, the public support for the rule of law is high and surprisingly stable. So I’ll get a little bit into the history of, and the genesis of this project. When we started this project, it coincided with the universal shutdown due to COVID. And this was happening in the third week of March in 2020 when all of this was shutting down. And we started this project to study public support for the rule of law. As everything was shutting down and we were concerned that perhaps with all of these new government actions and in the face of crisis that this might bring about a collapse for the public’s support for the rule of law.
And one of the things that we discovered as we got into the research and our research continued was we were really heartened to find that public support for the rule of law, both in the United States and elsewhere is quite strong and steadfast and was pretty stable. Over the course of our study, we were able to collect six waves of panel data in Germany, actually, but repeated waves of different samples in the United States. And we found overall that this value was pretty steady. So we were heartened to find that in the rest of the tumults that characterize that period of time.
Matt Grossmann: And Michael, I don’t think we’ve talked about the basic setup of the experiments that you conduct. So you found that these attitudes are real and that they impact how people respond. How’d you do that?
Michael Nelson: So you can think about the research design as having two components. The first is what Amanda mentioned, which is our measure of the public’s support for the rule of law. And this is something that folks in judicial politics have talked about for a few decades. There are a bunch of different items floating around both in the US and on the big cross-national surveys. And what we do in the book is we create a new measure of support for the rule of law. And to build off what Amanda said, we’re really shocked at how stable it was. We’ve asked it to over 10,000 US respondents since the start of the pandemic. And really the only movement that we’ve seen happened right after the 2020 presidential election when support for the rule of law in the US actually spiked. So we have CCS pre-post election data, and coming out of the 2020 election, people were more supportive for the rule of law than they were right before the election.
The second piece to that are these survey experiments that we did, and this is where COVID was useful for us because oftentimes it’s the case that issues that constitutional courts are hearing in different countries are really different and the law is really different. And the nice thing about COVID was everybody was instituting lockdowns. They were all looking to their courts to adjudicate what their country would allow for lockdowns. And so we could randomize the decision that a court made in response to a lockdown policy and then tell people that the executive went forward, either the court had endorsed it or struck it down, and then look at their responses.
Matt Grossmann: Jay, we’ve mentioned that it’s not only US data, you also have some comparative cases including Germany, Poland, and Hungary. So tell us about the reason for that comparison and also where the US stands out and where it doesn’t across these cases.
Jay Krehbiel: Sure. So I think a key point here is to go back to what Amanda was talking about, what judicial efficacy is. And we were talking as well earlier about the key results in this idea of judicial independence and particularly perceived judicial independence being a key mechanism. And so that was one of the really, I think a lot of ways the driving consideration when we started to look for cases that would share a number of some characteristics so that we think of, for example, we have these three European countries, members of the European Union along with the United States, where you have perhaps broadly shared conceptualizations of things like perhaps the rule of law, though we get into that a little bit in the book where we see differing viewpoints across some of the cases. And so when we started to think in this way of, well, judicial independence, Poland and Hungary are very prominent cases, particularly at the time when we were doing the study.
So those surveys were in 2021, Poland and Hungary were two of the most prominent cases of democratic backsliding really in the world and certainly in the western in the democratic world. And so they seemed at one level, very logical cases to choose because of that, because of the salience. But in addition to connect Poland and Hungary as a pair and then the United States and Germany as a pair of sorts, and that’s how we present them in a lot of the text in a lot of the book was able to give us these high judicial independence countries, low judicial independence countries, and then be able to go from there. In terms of where the US stands, I think at the time, and this is again, we’re pretty explicit about this, I think throughout the book. At the time, it was very much the United States and Germany are this pair of consolidated democracies with high levels of judicial independence and presumably perceived judicial independence. And that we’d compare the results, the expectations would be similar in the United States and Germany, and they would be in contrast with Hungary and Poland.
There’s been a couple of things that have changed. I’d note Poland has changed. They had an election since then that has brought the opposition into government. And so that’s one aspect of difference. But with the United States today, I’m not sure, I think we’ve been talking about this some amongst ourselves and this question of one has perceived judicial independence changed in the United States. I think an important distinction to note is that in Hungary and Poland, these are countries where the previous or the governments that conducted backsliding did things like constitutional changes, like the wholesale changed the structure of the judiciary, whereas that hasn’t happened in the United States. So I don’t want to go so far as to say that the US is, we would take it out of that pairing and stick it in with the other pair. I don’t think that’s where we’re at, but I do think it, recent events at least, would be a stress test perhaps is another way to think of it, of our theory of where do things stand.
Matt Grossmann: Amanda, the most heartening finding in your book is about the limited role of partisanship in the enforcement of the rule of law by the public. So tell us about that and what we should take from it.
Amanda Driscoll: And so going back one second to what we find in the comparative case study too, is that basically what we find is that when these high courts, constitutional courts that are in fact and perceived to be independent, strike down and incumbents’ illegal action. This has the effect of undermining public acceptance of the public response, kind of take that signal as like, “Okay, something bad has happened,” and they withhold their support. And we don’t find that in the cases of Poland and Hungary where the courts are not independent and they are not perceived to be independent. And so what we argue in the book is that we really need basically both, institutional independence as well as the public support for the rule of law. And in the latter part of the book, we take on and engage some of the ongoing research that focuses on partisanship.
There’s a lot of scholarship both in academic research as well as just in the mainstream media, discussion of polarization, partisanship, affect of polarization that paints a picture that the public is just going to be willing to give a free pass to their favorite co-partisans. And that they’re willing to just forgive any sort of behavior from incumbents with whom they share a party or their favorite incumbent. And so we engage that in the book to see if our rule of law account can stand up to the pull of partisanship. And so we unpack this in a couple of different ways, both randomizing the partisanship of the executive who is proposing an illegal policy as well as the litigant who might be taking a case. And we’re heartened to find that in neither case do we find evidence that partisanship undermines our core finding.
Matt Grossmann: So Michael, one of the reasons that this might be true is that the courts maintain public support and are seen as legitimate in the eyes of the public if they’re both independent and people are supportive of the rule of law, and I know you’ve long been involved in that literature, but that people keep saying, “Okay, but now what?” in relation to this. So I guess how stable should we expect that to be and what are the circumstances under which the findings would change and partisanship might break that down?
Michael Nelson: So we were doing page proofs for the book the last couple weeks, and we got a little nervous because it’s not great to have spent four years writing a book that, “Oh, this is going to be fine in the face of partisanship,” and then you read what’s happening in the news and you really hope you’re not one of these people that wrote a book that describes a time that doesn’t exist at the point people can buy the book. So we went back in the field a week or so ago, and-
Matt Grossmann: You always got to just add a question mark at the end of the title, the advocacy [inaudible 00:18:19].
Michael Nelson: Yes. There’s still time, there’s still time, guys.
Amanda Driscoll: Maybe?
Michael Nelson: The nice thing from a research design perspective with what’s going on in the US is that there is a lot of uncertainty both around what’s happening for citizens and around what courts are going to do. And our theory would suggest that the constraint on Trump would need to come from Republicans and not from Democrats. And the idea there is that if Trump is going to shut down USAID or shut down the Department of Education or something, Democrats are going to be upset about that regardless of how he does it. And so there’s really no low movement that Democrats can make. And so in our data, there’s no cost actually among Democrats for Trump to ignore a court because they’re upset with what he’s doing anyway. The only place where there can be a consequence for him is among Republicans.
And of course, the problem that you have there politically is that there aren’t a ton of Republicans that get upset when Trump does these sorts of things that challenge the rule of law, which articulates kind of the problem that we come to at the end of the book, which is that courts are able to create this cost, but the magnitude of the effect that we get isn’t enormous and it’s only among particular people. And so this idea that the courts will kind of automatically come in and save you, or that if we just design courts in a way that makes them independent, it doesn’t work like that. And so you not only need independent courts, but you also need citizens that are committed to enforcing constitutional boundaries even when it’s done by somebody that they like a lot.
Matt Grossmann: So Jay, one of the important distinctions you make at the beginning comparatively is that US is a system where there’s not any automatic review by the courts. Parties have to come forward who were harmed or set to be harmed. And I think it’s useful just to explain that distinction a little bit, but how much of a difference you think it makes that these decisions in the current context are going to be about specific cases that come forward from the affected parties?
Jay Krehbiel: I’m not sure, maybe, Mike, this might be a little more in your wheelhouse.
Michael Nelson: Yeah, sure. To go back to the previous point about courts aren’t automatically going to come and save you. You need people who have the resources and the willingness to bring the cases and to litigate. And so a problem with any sort of survey experiment like those that we do is that we just kind of assume that this happens when in reality it takes a lot of resources for these challenges to come and it takes time. The judicial process is designed to be slow. And so when we look at things like the US today, people can intend to sue in response to USAID being closed or something. But by the time they get their lawsuit together, they get it filed, there’s a hearing, there’s a gap in funding for these programs that you can’t go back and retroactively give people medication that they missed. And so another kind of structural weakness for courts is that this idea of procedural fairness and procedural justice slows down the process and makes it so that they are only able to act when they’re given the opportunity to.
Matt Grossmann: And Amanda, there’s kind of not an assumption, but sort of a focus on the idea that courts are going to be involved in kind of constitutional matters, but people often allege constitutional violations, but often the decisions are about things like the Administrative Procedures Act. And even when the litigants have lost, it’s often, “Well, firings are supposed to be handled by this internal administrative process.” So the courts, at least in the current circumstance, I think the public may not perceive them as kind of weighing in on some weighty constitutional matter if what they’re doing is basically applying laws passed by Congress and administrative procedures. How would you assess that?
Amanda Driscoll: Yeah, so I think that our book and our research is actually still really relevant to the current climate in the sense that our experimental vignettes and the stories that we were telling, the hypothetical situations that we were presenting the public with, presented them with administrative actions. It was the kind of thing like that an executive has a proposal to fast-track a vaccine that has not cleared the administrative approval process. And so we told our respondents that this is not compliant with the strict rule, but this is what the administration is doing anyway. And in our vignettes, the Constitutional Court was then weighing in on that on the basis of constitutionality.
But the sorts of experiments that we presented were in fact the sorts of administrative challenges that we are seeing play out in the United States and in other contexts around the world today. What we are now doing in the next phase of research as we’re moving on from the book, is exploring how that might work if instead of looking at constitutional review from a focal national court, if instead this is a district court or a federal court who’s ruling not necessarily on the basis of a constitutional matter, but on the basis of a statutory matter and we’re theorizing what differences might that make?
I think we would expect that what we’ve done thus far looking at the constitutional courts is perhaps a best-case scenario. These are courts that the public is aware of, that the public is supportive of, that this is a focal institution that is seen as the guardian, the safe keeper of the constitution. And so it could be that as we’re looking to lower courts to be performing this role, that perhaps the public’s responsiveness to lower court judicial review would be less responsive to those sorts of signals. And I think I’d have to kick to my co-authors about what we find, but from what I understand of what we found thus far is that we actually find that the public’s pretty responsive to lower court decisions as well.
Matt Grossmann: Jay, you all have made the case for focusing on the COVID pandemic and the comparison, but it also obviously was a pretty specific set of circumstances, maybe an emergency that people would be responding to. So tell us about how you’re thinking about the findings about COVID versus that generalize.
Jay Krehbiel: Sure. This is actually something that throughout the project we kind of have wrestled with, which was this question of how to incorporate the pandemic conditions not just into the research design and the benefits like we talked about, that it allowed us to make, I think, solid comparisons across countries because respondents were dealing with very similar kinds of considerations. One of the things that we’ve, I guess, thought about how to deal with this and that we’re working moving forward is the things that both Michael and Amanda have mentioned of, okay, if we move away or step away from COVID, do we find that this efficacy doesn’t work if it’s the executive ignoring an order about grant funding or DEI policies or something like that?
And it seems that it’s not wholly contingent on it just being COVID. And in some ways, again, we went into this project thinking the emergency conditions would lead us the other direction, that we thought, well, the emergency would make people have less support for the rule of law and be more amenable to these sorts of executive overreach or defiance of judicial institutions. And in fact, we’re finding that was very much not the case, at least in the United States and in Germany. So I don’t know how much more I could say on that front, if others have something else they want to jump in. We went a lot back and forth of how much COVID to make this and how much not COVID to make this. Because I think at the end of the day, both our theoretical framework, but also the results themselves, there’s nothing that to me suggests they’re contingent on it being the pandemic. Again, we’re moving forward with, I think, some other projects that show this empirically, but that’s kind of where we landed on it.
Matt Grossmann: Go ahead, Amanda.
Amanda Driscoll: Yeah, I mean, the COVID context allowed us, because the pandemic was a global emergency that hit every country in the world in a similar way with state government reactions in a similar way, allowed us to do this work comparatively that would’ve otherwise been impossible. And so it gives us inferential leverage that would otherwise be really, really difficult. So the COVID is really, we used this as an opportunity to study public support for the rule of law under these conditions that otherwise you can’t design. But it’s not actually a COVID book. And although the COVID is the kind of backdrop that animates our experimental vignettes, we even have experimental-
We even have experimental evidence in that we present in the book, and now we’re extending that research beyond it that takes similar experimental approaches to studying much different contexts. And the evidence that we find is really consistent even when we’re not talking about pandemic policies.
Matt Grossmann: So Michael, it’s not a Trump book, but I know that that’s how it’s going to be, that’s the political arena in which it’s going to enter. And I’m just wondering kind of how you think we should be thinking about this given that we sort of keep expecting maybe this big moment when the courts will overrule something or not overrule something and Trump will either defy it or not defy it? But a lot of what’s happening is what I’ve been calling Whack-a-Mole, that is lots of different authorities and actions are being challenged, the administration is saying that they are complying with the orders, but often saying, “Well, but now we’re acting on some other authority.” They’re appealing, some, they’re complying with some narrowly, they’re adding actions. So I’m just wondering if we’re not going to get that big moment, how you see this playing out? How is that likely to affect the public response?
Michael Nelson: So I think this goes a little bit back to the time point from earlier, that the structure of judicial review in the US is that you have all of these district courts all around the country who are making individual decisions on all of these different actions. And the administration is making claims about compliance that litigants are questioning rightly. And what happens is that the information environment gets so muddled that it’s difficult for people to detect whether or not noncompliance is happening. So we talk in the theory of the book that the great thing that courts can do is that because people tend to trust them, they can cut through the smoke and say, “Hey, the executive has engaged in actions that defy the constitution.” And so if people aren’t sure, they can look to that court and that court can tell them. And our theory as applied to now is, well, that works super well in Germany where you have one constitutional court that can issue a decision about an executive who’s maybe doing a couple of constitutionally questionable things.
We have just been trying to keep up with the district court decisions professionally to figure out what we can use for vignettes and we can’t keep track of it. And if we, the people who are studying this professionally, have a hard time of keeping track of all the district court decisions, it’s super hard for normal people who are just kind of zoning in and out of paying attention to politics happen. And so I think the real issue here is that because whether or not compliance is happening is so difficult for the average person to detect, it takes what is already a small to moderate size negative effect and diminishes it even more in ways that are bad for democracy.
Matt Grossmann: Yeah. Amanda, what seems to be happening is that all of the things that their lawyers told them they would lose on during the first administration, they’re just going ahead and doing this time and contesting them afterwards, but that means that there’s going to be a lot of them and a lot of different courts acting. So how do you see judicial efficacy in the wake of kind of all fronts at once battle?
Amanda Driscoll: Yeah. Well, I think that our book speaks really nicely to this, because if you can imagine what it would look like if the Supreme Court today did come out with a very clear ruling against the administration. That would be a really clear signal that I think the public would know how to process, and that’s what we’re arguing in the book, is that constitutional courts provided they’re independent and perceived as independent by the public and provided you have a public that is sufficiently supportive of the rule of law in the ways that we see that they are in the United States and elsewhere, provided you have that, then courts striking down an administrative action in that way can result in an animating of public support for the rule of law and public punishment of noncompliance.
Matt Grossmann: Well, Michael, with so many court actions not coming from the Supreme Court, it could also look like the courts are just allied against presidential action, they are challenging everything that the president does, and as you know, although I guess two things have already made it to the Supreme Court in some fashion, lots of things are really still going to be decided by all of these actors and we have this longstanding complaint about restraining orders that are nationwide even though people haven’t heard of the judges involved. So how do you think it’s likely to play out, given that?
Michael Nelson: I think it’s tough. You asked me a question about public support for courts earlier, and I did the annoying podcast thing where I just talked about something else. One thing that we haven’t talked about is the fact that trust in courts in the US has declined a lot over the last five years, and in the Supreme Court, it’s become increasingly partisan over the last decade. And so we talk in the book about when courts work well, they work well because they are seen as independent arbiters of what is appropriate under the Constitution. We have this partisan split in support for the courts such that their efficacy is compromised, and this gets only worse at the lower court level where every decision by a lower court judge says, “Matt Grossman, a Biden appointee, ruled on Tuesday.” In a way that explicitly puts those courts in a political frame for people learning about those decisions.
Matt Grossmann: So Jay, that’s the second approach, and if you don’t want to add a question mark to your book, you can just write a book in five years called, The Inefficacy of Judicial Review. So yeah, how are you seeing things?
Jay Krehbiel: Well, one of the things I think will be interesting to see play out is Michael was talking about the sort of partisan divide, or at least seeing the Supreme Court in this partisan way, in that it’s increasingly seen as a conservative court. I mean how many of the Justices were appointed by Trump? And that might actually, at least if the Supreme Court were to try and restrain executive power, could actually maybe counterintuitively work towards its favor pro efficacy, not inefficacy, in that Republicans may be less likely to dismiss the court precisely because they view it as being more aligned with them ideologically.
So it’s maybe easier to dismiss a Biden appointed district judge, but it may be much harder to dismiss a Supreme Court majority that is consisting of several appointees of the sitting president. And that’s I think one of the things that of course is predicated on the Supreme Court actually ruling in such a way, but might work in its favor in terms of the connecting to the finding we talked about earlier of who’s going to have to do the constraining, it’s going to be not people from the opposition, it’s supporters of the executive itself withholding support.
Matt Grossmann: So Michael, a lot of the current discussion has been about why Congress isn’t more of a force against presidential actions, but part of their response has been, well, they already wrote these things into law and the courts are the sort of avenue that they have there. But of course, we may see a multi-branch battle, we are going to have a potentially government shutdown or a negotiation at the end in March, we’ll have more along those lines. How do you see, you already said the courts are increasingly perceived as a political actor, how does that look when you literally have Congress and the President acting in political ways around each of these actions?
Michael Nelson: I think part of the issue is whether or not Congress, and in particular, Democrats in Congress, are able to message clearly about the administration’s posture vis-a-vis the courts. Because to go back to where we started, support for the rule of law in the US is high, it has remained high. It’s not the case that fewer people are answering questions like the government should comply with court orders less than they were a few years ago. And I think a key thing, because there is so much litigation in terms of there being cost to the non-compliance, is messaging to the public that this is happening and explaining the consequences of that.
Because in the absence of clear messaging that relates to these democratic norms, it’s easy for just so much to happen that people can’t latch onto it. But to me, the biggest issue with Congress is that if Congress wants to protect their turf, they need to not only be litigating, but as we say at the beginning of the book, there can’t just be legal consequences for violating the rule of law, there have to be political ones. And the only way for the public to enforce these political costs is for there to be widespread knowledge about what’s happening.
Matt Grossmann: Amanda, is there a danger that on the other side that the courts might rule that some of these actions are legal and that the opposition party wouldn’t buy that? Just for example, not to go too into the weeds, but let’s say it turns out that lots of contracts that the federal government is engaged in can be ended at the convenience of the government and that some of the employees, if the current administration doesn’t support that office within the agency, they can be eliminated fairly easily and courts go along with that or for the most part, is there a danger then that the public might have public expectations that these things are unconstitutional in some broad way that the courts don’t go along with?
Amanda Driscoll: Yeah, so one of the things that we haven’t really talked about yet but is a key finding in our book is that, so up until now we’ve really been talking about what is the public’s response when a court is striking down an administrative policy. But we also look at instances where courts are basically signing off and being like, “Yeah, go ahead. Sure, that’s constitutional. Yeah, that’s okay.” And this is important to think about because you might imagine a scenario where a would-be autocrat would capture the courts and would stack courts with all of their friends, and put a constitutional court in a position where then the constitutional court using their tool, using constitutional review, would just give a free pass carte blanche to whatever it is that an autocratic government would want. And it would be really problematic if what we observed is that constitutional courts just giving a pass to their friends in government actually legitimized those policies or actually changed the public’s acceptance of those policies, such that by just seeing the constitutional court giving clearance, would then bolster support for those sorts of policies.
And encouragingly, that’s not what we find. In no case in any of the countries that we studied in any of the [inaudible 00:43:45] that we fielded, which were numerous. We found no evidence that a court giving a pass to an incumbent yielded any change in acceptance at all. And so the power of judicial review and the power of judicial institutions in terms of animating the public response to constrain the state is in this sense really limited. Courts cannot change hearts and minds in that way, we find no evidence that that’s the case.
Matt Grossmann: So at least my current reaction to how the constraints as they’re playing out right now are a lot of them have more to do with these inter-elite dynamics that the public doesn’t even know about, much have a reaction to, just things like Justice Department lawyers do not want to tell the court that the administration is not complying so they’re saying, “Well, let me find more information, let me correct what I told you last time, let me tell you, we are going to comply, but we can’t do so by midnight tonight.” But I guess I don’t, I’m just wondering if any of what’s happening now is changing your view of the centrality of the public in this process rather than that this is a intra elite norms that are either holding or not.
Michael Nelson: I would say two things. First, that because courts work slowly, this is the first stage of what could be an excruciatingly long series of legal battles. And so, there have been Trump appointed judges that have ruled against the administration. I think one thing that we haven’t really talked about is that the people that litigate matter. And so, if you have massive turnover at the DOJ, such that the quality of representation for the administration changes, then that has, I think, pretty dramatic effects for what the litigation looks like over the long term. And so, we’re in this weird stage where a lot is happening, not a lot is getting resolved. And you have a bunch of career people at the DOJ who are being pulled in different directions. What we don’t know is what the staffing of the DOJ looks like in two years when they’re back in court defending some of these things. And that’s going to have ramifications for both Congress’s posture and interest groups posture vis-a-vis what cases to bring, but also judges’ tolerance for arguments that are made before them in court.
Matt Grossmann: So, I know we’re all trying to follow changing circumstances. But one of the first signals I’m taking is just what’s being appealed to the Supreme Court. And the two so far are this person that they wanted to get fired who is actually in charge of seeing internal cases of employees being fired in the administration. And the other one was that they had to comply with an order by midnight to reinstate grants that they were claiming they still need to review to see if they’re in the other policies.
So, I guess I’ll just ask this from the more alarmist direction. Other people might just say, you all are putting some legal niceties on what’s happening, which is a real move toward authoritarianism, at least in that direction, where the administration’s going to be able to do a lot of different things. And the courts might rule against some of them, but they rule in favor of some of them. They might rule against others too late. They might rule mixed opinions. But that this is part of a much more coordinated strategy that the courts just aren’t equipped to handle. Now I made an even stronger claim that any of you can contest.
Michael Nelson: Yeah, I mean I think you’re totally right. And not for us to come across as super pessimistic, but there’s a real pessimistic read of the book, which is that we teach kids in elementary school that there’s a constitution and the courts police it. And if you break it, then you get in trouble. And you look around the world and it’s like, well, it seems sometimes that people have ignored courts and not really gotten in trouble. And then you look at our book and in half of our cases in Poland and Hungary across four different experiments, there is absolutely no evidence that implementing a policy in violation of a court order does anything to reduce acceptance for the court’s decision, even among the people who score highest on support for the rule of law.
In the US, among people that are at the low end of that rule of law scale, implementing a policy in defiance of the court doesn’t lower acceptance of it. And so, that’s normatively scary in terms of the fact that we just assume that courts are going to be there and the courts are going to save us. Our book gives best-case scenario where you get one survey experiment with one really clear thing that is decided by an apex court. And you get in our world where you have lots of stuff going on, it’s hard for people to monitor. And it’s easy to see how this idea that the courts will come in and save us breaks down really fast. I’m a downer. I’m sorry.
Matt Grossmann: Anyone want to make a more positive case? I mean I’ll make it and then you can disagree with that one. So, yes, as you said, there have been already a lot of things stopped almost instantly by Republican and Democratic judges. They are trying to enforce those orders, not taking the word for the government that they are being enforced. And a lot of these things, it’s going to be hard to appeal every temporary stop to something because the case that they have to do it now is not that strong. So, maybe things are holding?
Jay Krehbiel: Well and one of the things I think that we’re yet to see, maybe we won’t, I guess the hopeful cases is we won’t, but is how many times do they have to cross the Rubicon for it to matter? If the courts are doing everything they can to avoid making super declarative statements that might make them end up looking weak as a result of non-compliance, we can give you more time. Oh, that’s what you meant? Okay. Well this is actually what I meant. So, now go write this, as you say, whack-a-mole.
Eventually that’s going to have to play out one way or another. I would think that you’re going to come to a point where, no, this is what I mean and everyone knows what I mean. And you’re either going to do it or you’re not. And if the government doesn’t is one time enough to trigger. And this is a thing in the book, we just have experiments that are one shot and you just ask them the one time. Is defying one federal district court judge enough to get people upset enough to do something or at least that sliver of people?
One of the things I saw in the news yesterday was a Republican senator telling nominees for justice department roles to never ever say you’re going to defy a federal court. So, maybe that means something. Or does it need to be a whole bunch of federal district courts? Like, well, they just did the one. Has it got to be more than one or does it come to the Supreme Court? And I don’t think we really know the answer to that. I don’t know if that’s a positive view, but it could be if you think it just takes one or two times where then either opposition politicians, Democrats or some Republicans say, you ignored this court. You did it the one time and that’s one too many. We don’t know that answer because we hopefully won’t get there. The threat of what could happen I think is what underlies a lot of this behavior of we don’t want to be seen as blatantly ignoring because we think there will be costs that come with that. And it’s that specter of a cost that hopefully holds.
Matt Grossmann: We have kind of, I guess, an intermediary case for the moment where the courts are playing some important role, a public response to the courts is playing some role. But back to my question about whether it matters that the kind of legal system that we’re in, it is strange that we’re deciding constitutional question about spending authority of the Congress versus the president, basically on the basis of what State Attorney General have standing for what government employee unions, and USAID contractors want to sue about, it seems like an odd set of circumstances. So, I guess is there a case that the courts will hold, but our system of interest group contestation is making the constitutional questions less apparent? If you’re a USAID contractor trying to get your contract restarted, you’re going to act like an interest group, not a constitutional lawyer. If constitutional law is helpful, then you’ll do that. But if it’s just, oh, they violated this thing in the appropriation statute, that’s the easiest thing, then that’s what I’m going to go for. So, I’m just wondering how that changes how this plays out.
Jay Krehbiel: I mean, I think one of the things we talked about earlier, it’s the question of resources and who has the best sort of set of facts that you think can pass muster. And so, that is a set of facts that is not maybe only from a legal perspective, but at least I guess for us thinking about what’s going to engender some political response. And I think maybe it is a fair question, what is the current political climate in people’s attitudes? If it’s a USAID contractor, is that going to be the kind of sympathetic fact pattern that’s going to generate the kind of public response that you want? I mean, I don’t necessarily know the answer to that, but it does raise another perhaps, dimension to these kinds of inter-branch conflicts of if the public is in public perception of the process is an important piece of this story, then the players in it matter. Not just the lawyers or the judges, but also the litigants, and who they are and what their sort of story is. Anyway, I see other hands though.
Amanda Driscoll: Yeah. And one of the things that we did investigate in the course of writing this book was is this about courts? And we came to the conclusion that actually this is about judicial review. We include in our book an experiment where rather than a court providing a check on an executive, it was a legislature. And we failed at this in multiple countries. And that congressional oversight, checking an executive in these situations, did not yield the same public response.
And so, as we argue in the book, there is something about judicial institutions, their perceived independence, their perceived procedural probity, that the legal process embodies all of that, that feeds into the public’s perception that allow courts to perhaps uniquely cut through the acrimony, and cut through the politics and cut through the noise to animate public opposition to executive overreach.
Now, are courts truly unique in this capacity? Probably not. There’s probably other mechanisms, other institutions that can animate a public response, a coordinated public response to executive overreach. Maybe it’s the news media, maybe it’s other institutions, maybe it’s other oversight institutions that moved beyond the scope of what we’ve done in our research thus far. But courts are provided, they’re independent, potentially uniquely positioned to be eliciting a public response.
Matt Grossmann: Michael, your chance to tell us anything we didn’t get to that you wanted to include or tout what you’re working on now. But maybe you could also help us as we’re seeing the Trump administration in real time, what would we be looking for to know whether the mechanisms, as you’ve laid them out, are occurring in real time?
Michael Nelson: I think the biggest tell is what the Supreme Court does over the next couple of months. And they’re in a really good position because they get to pick the cases they want to hear. And so, they’re probably going to be able to pick a case where they will tell Trump no and a case where they will tell Trump yes. And that’s John Roberts’ favorite thing to do. But I think looking at what the issues are that they see as worthy of them deciding, versus what they leave for the lower courts will tell us a lot about what the posture is going to look like going forward.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available bi-weekly from the Niskanen Center, and I’m your host, Matt Grossmann. If you like this discussion, here are the episodes you should check out next all linked on our website. How the Supreme Court shapes and is shaped by its public support. Will Supreme Court public backlash? How the Federalist Society changed the Supreme Court vetting process. How court nominations polarized interest groups. And why do Americans accept Democratic backsliding? Thanks to Amanda Driscoll, Michael Nelson and Jay Krehbiel for joining me. Please check out the Efficacy of Judicial Review and then listen in next time.