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Judicial deference to elected legislatures and executives on questions of constitutionality is motivated, in part, by a belief that unelected judges should not interfere with the application of the people's political authority by their elected representatives. This view assumes that unelected judges are unrepresentative of the people and that elected officials are faithful agents of their constituents. Canonical and contemporary research in political science, though, challenge these assumptions. The "regime politics" perspective proposes judicial majorities are typically partners in a national governing coalition and that judicial decisions--even those that invalidate or narrowly interpret laws created by elected institutions--tend to advance the interests of legislative majorities and the voters who support them. More recent "popular agency" theories of judicial power claim electoral majorities may make common cause with unelected judges in ways that stymie the political goals of elected representatives. This Essay describes these two perspectives on the relationship between majoritarian politics and judicial power and describes some of their implications for the problem of judicial deference. I argue first the regime politics view of judicial power suggests normative concerns about judicial deference to the political branches of government is misplaced. Meaningful and independent judicial scrutiny of legislative and executive policy making is foreign to a system in which courts, Congress, and president are members of the same team. In contrast, I argue the popular agency view of judicial independence suggests that courts' latitude to independently interrogate policy making by the elected branches of government will vary, in part, as a function of the public's perception of their elected representatives' trustworthiness. I conclude by identifying some political factors that may support diminished judicial deference to the choices of elected legislatures and executives in some cases. [ABSTRACT FROM AUTHOR]

Objective: There is substantial evidence that American voters blame or credit the president for the state of the economy when making electoral decisions. However, a variety of findings on economic voting, cognitive biases in information processing, and party polarization indicate that both objective and subjective economic information should become less important to voters as partisan polarization increases. We evaluate whether partisan polarization attenuates the link between economic performance and citizens' votes. Methods: We estimate statistical models of the incumbent party vote shares in U.S. presidential elections from 1952 to 2016 including as predictive terms national partisan polarization (DW‐NOMINATE) and the interaction between polarization and economic growth (annualized second quarter GDP change in election years). Results: We find support for our expectation that greater partisan polarization mitigates the association between economic performance and American election returns. Conclusion: Economic performance exerts less influence on vote choices when parties are highly polarized than when they are not. Also, currently high levels of partisan polarization in the United States indicate elections will remain competitive, even if economic conditions otherwise favor or undermine an incumbent candidate's chances of winning. [ABSTRACT FROM AUTHOR]

Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why don't legislative majorities enacting discriminatory legislation curb judicial power when judges use their power to protect minorities and stymie the legislation? We answer this question by showing that judicial protection of disfavored minorities can emerge as an unintended by-product of majoritarian politics. We develop a model that includes the two aspects of judicial review Alexander Hamilton discusses in The Federalist No. 78: Judicial protection of disfavored minorities against hostile popular majorities, and judicial protection of majority interests against legislative depredation. It is the institutional linkage between these functions that induces popular majorities, within limits, to side with judges against legislatures even when those judges protect minorities that popular majorities want to oppress. [ABSTRACT FROM AUTHOR]

For decades, constitutional theorists have confronted the normative problems associated with judicial review by an unelected judiciary; yet some political scientists contend that judicial review actually tends to promote majoritarian interests. We evaluate the majoritarian nature of judicial review and test the political foundations that shape this process. To do so, we construct a statute-centered data set of every important federal law enacted from 1949 through 2008 and estimate the probability of a law being challenged and subsequently invalidated by the Supreme Court. Our methodological approach overcomes problems of selection bias and facilitates a test of judicial majoritarianism and the mechanisms that drive that behavior. We find that the Court tends to invalidate laws with little support from elected officials and that this pattern is primarily driven by the justices' concern for congressional constraint during the certiorari stage. [ABSTRACT FROM AUTHOR]

This article is a first attempt to develop and assess the competing predictions of the thermostatic model of public opinion and legitimation theory for the responses of public mood to Supreme Court decisions. While the thermostatic model predicts a negative relationship between the ideological direction of Supreme Court decisions and changes in public mood, legitimation theory predicts that changes in mood should be positively associated with the ideological content of the Court's actions. I assess these rival expectations by modeling the dynamic relationship between mood and cumulative judicial liberalism. The model estimates indicate a complex interaction between the Court and the mass public characterized by short-term backlash against Supreme Court decisions in mood followed by long-run movement toward the ideological positions taken by the Court. The results emphasize the legitimacy of the Court in American politics and point to a unique role for the Court in shaping public opinion. [ABSTRACT FROM AUTHOR]

Formal constitutional systems of separated powers often fail to sustain meaningful systems of checks and balances in presidential-style democracies. What conditions support balance in the separation of powers and what conditions provoke instability and conflict? We draw on Madisonian political theory and research addressing the separation of powers in the United States to develop a game theoretical model of inter-institutional stability and conflict within a separation of powers system. Two factors emerge as catalysts for institutional instability and conflict among the branches of government: high-stakes institutional rivalry combined with uncertainty about the public’s relative support for various branches of government. We apply the model to the experience of Honduras in 2008–2009 that resulted in the coup ousting President Zelaya which illustrates the difficulty of developing credible checks and balances. [ABSTRACT FROM PUBLISHER]

Inquiry into the origins of partisan polarization has generally treated polarization as a simple, symmetric phenomenon—the degree to which the worldviews of the mass Democratic and Republican parties have or have not diverged from one another. In this article, we disaggregate polarization into its constituent parts, the dynamic preferences of the mass Democratic and Republican Parties. This approach allows for the possibility that intraparty dynamics may influence interparty differences and for the integration of studies of polarization with literatures addressing other dynamics in aggregate public opinion. Building on individual-level research on partisan identities and macrolevel research on public mood, we argue that party polarization may be catalyzed, in part, by the mass parties’ differential responsiveness to changes in the macro political-economic context. We find support for this position, showing asymmetries in the dynamics of polarization that are associated with differential partisan responsiveness to domestic policy choices. [ABSTRACT FROM PUBLISHER]

Scholars often assert that public support for judicial authority induces Congress to grant resources and discretion to the Supreme Court. However, the theory of competing public agency embraced by the Constitution suggests that public support for courts cannot, by itself explain congressional support for judicial authority. Instead, the logic of the separation of powers system indicates that legislative support for the institutional capacity of courts will be a function of public confidence in the legislature as well as evaluations of the judiciary. We test this theory, finding that public confidence in both Congress and the Court significantly affect congressional support for the Supreme Court, controlling for the ideological distance between the Court and Congress as well as the Court's workload. The results offer a more refined and complex view of the role of public sentiment in balancing institutional power in American politics. [ABSTRACT FROM AUTHOR]

Objective: To inform international discourse about judicial countermajoritarianism, we assess whether decisions enhancing gay rights by Canadian courts increase the media's attention to homosexuality and related topics. Method: We first collect a data set of monthly counts of relevant articles published in two prominent Canadian newspapers and then estimate Markov‐switching models to evaluate whether increases in media attention to homosexuality are coincident with judicial decisions enhancing gay rights in Canada. Results: Each of five landmark gay rights decisions is coincident with a period of heightened media attention to homosexuality. The data show that Canadian newspapers publish nearly twice as many relevant stories during these "active" regimes compared to "inactive" periods. Conclusion: Canadian courts can increase attention to issues in the national media. This result supports a dynamic view of the interaction between courts and democratic majorities in place of the static view of democracy endemic to normative discourse about judicial countermajoritarianism. [ABSTRACT FROM AUTHOR]

We develop and assess an account of ideological asymmetries in public support for the Supreme Court. We find that specific support for the Supreme Court is more strongly negatively related to perceptions that the Court is overly liberal than perceptions that the Court is overly conservative. Our findings provide a more complete theoretical account of dynamics in specific support for the Supreme Court and indicate a mechanism behind the recent decline in the Supreme Court's public standing. [ABSTRACT FROM AUTHOR]