Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting

G Model

ARTICLE IN PRESS

SOCSCI-1180; No. of Pages 10

The Social Science Journal xxx (2014) xxx–xxx

Contents lists available at ScienceDirect

The Social Science Journal journal homepage: www.elsevier.com/locate/soscij

Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting Brett Curry a,∗ , Trenton J. Davis b a b

Department of Political Science, Georgia Southern University, Box 8101, Statesboro, GA 30460-8101, USA Institute for Public and Nonprofit Studies, Georgia Southern University, USA

a r t i c l e

i n f o

Article history: Received 20 August 2013 Received in revised form 28 May 2014 Accepted 28 May 2014 Available online xxx Keywords: Jurisdiction Redistricting Congress Supreme Court

a b s t r a c t Jurisdiction-stripping has long been a questionable component of Congress’s power to supervise the judiciary’s policymaking role. It has gained notoriety in recent debates surrounding judicial involvement in areas including religious establishment and privacy issues such as abortion and same-sex marriage. Most scholarship equates the advocacy of jurisdiction-stripping measures with symbolic position-taking that is unmotivated by the goal of traditional policy success. This work, a quantitative case study of the first such measure to pass the House of Representative since Reconstruction, seeks to isolate legislative motivations for exerting jurisdictional controls against the Supreme Court. Legislators’ votes on this measure were multifaceted. While those decisions were guided in part by the symbolic and representational considerations that traditionally underlie the advocacy of such legislation, there is also evidence more substantive motivations played a part. The study highlights the evolving objectives of jurisdiction-stripping’s advocates and, more broadly, Congress’s objectives vis-à-vis the courts. © 2014 Western Social Science Association. Published by Elsevier Inc. All rights reserved.

1. Introduction By the mid-1960s, the Warren Court’s rights revolution was in full flower. For a decade, legislators witnessed the Court’s policy activism in desegregation cases and had seen it strike down popular prayer and Bible reading programs in public schools. Though decisions in these areas—as well as several contentious decisions in communist subversion cases—gave rise to a variety of Court-curbing1 measures,

∗ Corresponding author. Tel.: +1 912 478 7076. E-mail address: [email protected] (B. Curry). 1 “Court-curbing” has traditionally been used to describe a variety of measures, including jurisdiction-stripping initiatives. For example, Clark’s (2011) study distinguished several categories of court-curbing legislation, including measures related to composition, jurisdiction, judicial review, remedy, procedural and other.

no majority of either chamber of Congress was prepared to strike at the Court’s jurisdictional power. But in 1962, the Supreme Court began to wade into an even more treacherous political thicket (Colegrove v. Green, 1946, p. 253) when it issued its landmark decision in Baker v. Carr, which declared issues of legislative reapportionment to be fit for adjudication by the federal courts. The justices wasted little time addressing those questions in cases including Wesberry v. Sanders and, later, a series of state cases in Reynolds v. Sims, leading one observer to conclude that, “The Supreme Court’s decision[s] in the apportionment cases involved the most remarkable and far-reaching exercise of judicial power in our history” (Cortner, 1970, p. 253). Chief Justice Earl Warren underscored that assessment years later, calling Baker v. Carr the most important case he heard on the Supreme Court, because it removed the jurisdictional barrier to redistricting challenges (Warren, 1977, p.

http://dx.doi.org/10.1016/j.soscij.2014.05.006 0362-3319/© 2014 Western Social Science Association. Published by Elsevier Inc. All rights reserved.

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

2

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

306). The U.S. House of Representatives certainly noticed. Scarcely two years after Baker v. Carr, the House voted to pass HR 11,926, a measure known as the Tuck Bill, in order to “exclude cases involving apportionment or reapportionment from the appellate jurisdiction of the Supreme Court and the jurisdiction of Federal district courts” (Digest, 1964, 11,926). The present study examines the factors related to this bill’s passage by the House. Why did the House pass a jurisdictional response to the Court’s reapportionment cases when it had failed to do so in reaction to a number of other contentious decisions? Neither public opinion nor political ideology provides a fully satisfactory explanation. The public’s response to the reapportionment cases was broadly favorable (Cortner, 1970, p. 144). Conservatives in Congress may have been predisposed to support the legislation because of simmering disapproval of the Warren Court, but it remains curious why it was the issue of legislative districting around which many other, less conservative members coalesced.2 The present study evaluates the influence of electoral context, representation interests, and perceived threats from the decisions in structuring the House vote on this measure. This article also considers the ways in which this singular episode—the first time in nearly 100 years that a congressional majority indicated its receptiveness to jurisdiction-stripping—may offer broader insight into the forces that may motivate members of Congress to participate in that practice. This component of the paper is particularly timely, given renewed interest in the idea of jurisdiction-stripping among conservative members of Congress, Republican presidential candidates,3 and academic scholars in recent years. After a brief summary of the ways Congress and its members may respond to Supreme Court decisions, a description of the phenomenon of jurisdiction-stripping and review of the concept’s history are provided. The study then turns to legislative redistricting and examines both the Supreme Court’s decisions and congressional reactions to them. After sketching the legal and political context of the decisions, an analysis of individual members’ voting activity on the 1964 Tuck Bill reveals numerous significant factors—including variables related to both ideological and representational forces, as well as the likely threat to individual members posed by the decisions. The study concludes with observations about the Tuck Bill’s relevance in piecing together the phenomenon of jurisdiction-stripping and its historical evolution in American legal and political history. 2. Congressional responses to Supreme Court decisions Congress and its members have the ability to blunt the effects of Supreme Court decisions in a number of ways. In non-constitutional cases, a simple majority of

2 The 88th House was hardly a bulwark of ideological conservatism (Poole & Rosenthal, 2000). Indeed, it passed the Civil Rights Act of 1964 just months before approving the jurisdictional measure we focus on here. 3 During the campaign for the 2012 Republican Party nomination for President, a number of candidates—including Newt Gingrich, Michelle Bachmann, and Ron Paul—went on record in support of such measures.

Congress may reverse the Court’s decisions (Eskridge, 1991; Henschen, 1983).4 In some situations, the Court itself may even invite Congress to overrule those holdings (Hausegger & Baum, 1999). Pickerill (2004) asserts that Congressional deliberations are frequently structured by the Court’s decisions, and he buttresses that view with evidence from the Court’s federalism cases. Decisions arrived at on constitutional grounds, by contrast, impose weightier constraints on congressional efforts to override the Court. Still, the nature of certain policy areas may enable Congress to circumvent decisions in ways that fall short of overturning them (Keynes & Miller, 1989). Others have argued that, by pursuing coordinate interpretation of the Constitution, Congress can sometimes vitiate the Court’s constitutional interpretations. Members may also pursue the avenue of constitutional amendment, although the vast majority of those efforts have proven unsuccessful (Clark & McGuire, 1996; Meernik & Ignagni, 1997). 2.1. Jurisdictional controls and the phenomenon of “court-stripping” According to the U.S. Constitution (Article III, Section 2), “the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Congress has relied on this “Exceptions Clause” to justify numerous limitations in the Supreme Court’s appellate jurisdiction. However, those limitations have traditionally been undertaken in order to grant the Court greater administrative discretion over which cases it chooses to review—not to influence or circumvent judicial policy outcomes in specific classes of constitutional cases.5 Although the position is controversial, some believe cases such as Ex parte McCardle (1869) validate the idea that Congress may preclude some or all federal courts from adjudicating cases in specific areas of law (Abraham, 1981; Rice, 1981). McCardle, of course, was the case in which the Supreme Court unanimously upheld Congress’s authority to withdraw the Court’s jurisdiction over an imprisoned journalist’s pending habeas corpus proceeding. On the other hand, subsequent cases, including U.S. v. Klein (1871) and Boumediene v. Bush (2008),6 suggest that congressional

4 As one recent illustration of this phenomenon, Congress passed and President Obama signed into law the Lilly Ledbetter Fair Pay Act of 2009 to overrule the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. (2007). 5 In the Judges Bill of 1925, Congress utilized its power under the Exceptions Clause to place substantial limits on direct Supreme Court review of numerous district court decisions. Since 1925, Congress has continued to use the Exceptions Clause in ways designed to give the Supreme Court greater control of its own docket. In the Omnibus Crime Control Act of 1970, Congress eliminated direct appeals from the district courts in certain types of criminal cases. By 1988, Congress had used its power under the Exceptions Clause to eliminate virtually all the Supreme Court’s mandatory jurisdiction over appeals arising from the lower federal courts (Fallon, Meltzer and Shapiro (1996), pp. 1637–1640). 6 In Boumediene the Court held that the Military Commissions Act of 2006, which “remove[d] federal court jurisdiction over habeas corpus petitions by enemy combatants held in the military detention facility in Guantanamo Bay” (Clark, 2011, p. 40), failed to provide an adequate

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

3

use of the Exceptions Clause to limit the judiciary’s constitutional role cannot stand. In any event, because the Supreme Court has managed to avoid weighing in definitively on the scope of Congress’s jurisdictional power, the legal and theoretical arguments wage on (Goelzhauser, 2012). More to the point, the Warren Court’s issuance of numerous progressive constitutional decisions re-ignited arguments over the practice in the 1950s and 1960s. Advocates began to champion those measures in response to the Court’s desegregation decisions as well as several of its rulings in national security cases (Murphy, 1962, p. 88). As noted earlier, these so-called jurisdiction-stripping efforts are an important component of a somewhat broader class of “court-stripping” activity (Clark, 2011, pp. 36–43). Though the distinction has not been widely investigated, Devins (2006, p. 1339) contends that more contemporary jurisdiction-stripping efforts have been intended “to make a symbolic statement. That statement can be made whether or not these measures are enacted.” Whereas lawmakers during the Warren Court era “truly wanted to undo what the Court had done, and had very strong feelings about Congress’s power to independently interpret the Constitution, . . .recent jurisdiction stripping proposals are little more than rhetorical ploys” (Devins, 2006, pp. 1339–1347). In other words, Devins suggests that jurisdiction-stripping efforts targeting the Warren Court were treated with more substantive seriousness, by both Congress and the Court, than has been true of more recent attempts. One of the objectives of the current study is to consider whether the voting patterns on the Tuck Bill are consistent with that argument or, instead, are more reflective of the symbolic motivations that are commonly associated with the practice today. Today, the symbolic position-taking objectives of legislators can be fulfilled regardless of whether jurisdictionstripping proposals are passed or even found to be constitutional (Devins, 2006, p. 1356). Proponents of jurisdiction-stripping have attempted to utilize the tactic in policy areas such as school prayer, busing, and abortion; most recently, these proposals have been advocated as a way to limit judicial review of cases involving matters such as the Pledge of Allegiance and same-sex marriage (Abraham, 1981; Abrams, 2006; Goelzhauser, 2012; Keynes & Miller, 1989; Vascellaro, 2004). Such proposals have become a staple of American politics over the past half-century. Since the 1960s over a half dozen of these jurisdictional measures have passed one chamber of the U.S. Congress, with the most recent example dating from

2006.7 The first occurred in 1964, and is the focus of this study. Additionally, and perhaps not coincidentally, the increasing congressional attention to the symbolic value of jurisdiction-stripping of which Devins speaks has been accompanied by shifting views on the judiciary’s proper role in national policymaking. According to Peabody (2004), a vastly greater percentage of lawmakers felt the views of Congress should be controlling in constitutional cases during the Warren Court era than has been true in subsequent times (40% vs. 14%). Pickerill’s findings neatly underscore the observation that today’s Court unquestionably plays the leading role in the drama of constitutional interpretation. In what could serve as a summary of the Court’s evolving role in defining policy, Pickerill’s theory of judicial primacy envisions the Court having the “primary role in constitutional interpretation. . .Under a theory of judicial primacy, the Court’s constitutional interpretations will usually shape constitutional deliberation in the other branches of government, and as such the Court will be the primary interpreter of the Constitution” (Pickerill, 2004, pp. 9, 145–153). Such a perspective is broadly consistent with the view advanced by others (Devins, 2006; Peabody, 2004) that, in some contrast to earlier times, the Court’s supremacy in constitutional interpretation vis-àvis the elected branches is no longer open to meaningful debate. Dahl acknowledges the Supreme Court’s relevance to the policy process, but ultimately concludes the Court has very little ability to shape national policy when acting alone; its chief function is to legitimize policies arrived at by others (Dahl, 1957, p. 293). In the wake of the Warren Court, however, that view came into question. Visions of a Supreme Court whose involvement in policy matters was largely ancillary to the elected branches did not square with rulings such as Mapp v. Ohio (1961), Miranda v. Arizona (1966), or Roe v. Wade (1973)—and certainly did not comport with a political climate in which members of Congress openly championed jurisdictional curbs to limit the institution’s power. Casper pronounced Dahl’s model of policymaking too restrictive and suggested a more nuanced view in which the judiciary engages in a policy dialog with the other branches of government (Casper, 1976, p. 50). Subsequent work has built on this foundation by examining the determinants and impact of judicial policymaking (Ringquist & Emmert, 1999; Rowland & Carp, 1983). Today, few scholars would disagree with the assertion that, “The more we learn about judicial behavior, the more this behavior resembles that of other more traditional policymakers

substitute for habeas corpus (Katz, 2009, p. 394). The Court’s decision in Boumediene has been described as “a case about the Court’s vision of separation of powers—a vision in which federal courts serve to keep the political branches within the bounds of the Constitution. . .” (Katz, 2009, p. 378). In contrast to the Warren Court era, such a contemporary perspective is broadly consistent with the scholarly view that Congressional power to interpret the Constitution independently of the Court is no longer open to debate (Devins, 2006; Peabody, 2004).

7 In addition to passage of the Tuck Bill in 1964, the House has also passed legislation denying federal court jurisdiction over cases challenging both the Defense of Marriage Act and, in 2004 and 2006, the Pledge of Allegiance (Abrams, 2006; Fitzgerald & Cooperman, 2004; Hulse, 2004a, 2004b; Vascellaro, 2004). The U.S. Senate voted to limit federal jurisdiction over court-ordered school busing (129 Cong. Rec. 2779) and public school prayer (Keynes & Miller, 1989, p. 201) in the early 1980s. Finally, the Detainee Treatment Act, passed by Congress in 2005, prohibited U.S. courts from reviewing detainee treatment cases arising from detainees housed at Guantanamo Bay, Cuba in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

4

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

in the American system (. . .) Judicial decisions are policy decisions in that they allocate resources and values, and contribute significantly to the attainment of policy goals” (Ringquist & Emmert, 1999, p. 7). As the Court’s policymaking role has increased, additional political opportunities have been created for members of Congress to trumpet their opposition to Court decisions (Whittington, 2007, p. 142). According to Bamberger (2000), this has created a climate in which Congress even passes “reckless legislation” it knows is unconstitutional in order to satisfy constituents. These same legislators who knowingly pass unconstitutional bills can often gain additional popularity by attacking the courts and judges who, in turn, invalidate these constitutionally reckless measures. The legal and political controversy surrounding legislative redistricting emerged on the national scene shortly after numerous members of Congress excoriated the Court for its policy pronouncements in the areas of school desegregation and communist subversion (Devins, 2006). Still, for all the sound and fury jurisdictional proposals surrounding these issues generated, neither the House nor the Senate mustered majority support for stripping the courts of jurisdiction over those cases (Murphy, 1962; Pritchett, 1961). It was the Court’s reapportionment jurisprudence that catalyzed the House to pass jurisdiction-stripping legislation.

3. Reapportionment: legal and political background In 1946, Kenneth Colegrove and other Illinois residents challenged the constitutionality of that state’s congressional districting plan. They argued that Illinois’s reapportionment scheme was so unbalanced that its existing congressional districts violated Article Four of the U.S. Constitution’s guarantee of a republican form of government (Epstein & Walker, 2004, p. 720). Colegrove v. Green seemed the ideal challenge to legislative malapportionment, because Illinois had not adjusted its districts since the turn of the century and the population disparity between the state’s largest and smallest congressional districts—at a ratio of 8 to 1—was the most unbalanced in the nation. This, as elsewhere, tended to give rural areas disproportionate political influence (Dixon, 1968, p. 110). However, in its 4–3 decision in the case, the U.S. Supreme Court determined that reapportionment was a political question unsuitable for adjudication by the federal courts.8 For sixteen years, the legal and policy implications of Colegrove were reasonably clear—reapportionment issues were viewed as being unsuitable for judicial resolution. Colegrove v. Greenserved as a major obstacle to legal challenges of redistricting at both the national and state levels (Cortner, 1970, p. 23). The Court’s refusal to enter this legal area

8 Technically, only three of the four justices in the plurality felt legislative reapportionment amounted to a political question. Justice Rutledge filed a concurring opinion in which he granted that reapportionment controversies were legitimate objects of judicial determination. In the specific case of Colegrove, however, Rutledge wrote that the Court should not exercise that jurisdiction because, “the right here is not absolute. And the cure sought may be worse than the disease” Colegrove v. Green, p. 566.

left states free to maintain highly inequitable legislative districting arrangements. The reapportionment decisions of the 1960s would change this dramatically. According to Whittington, “The Court’s willingness to intervene in the field was an abrupt departure from the traditional understanding of apportionment being a legislative and deeply political prerogative” (2007, p. 126). As noted earlier, the controversy began with Baker v. Carr (1962), in which the Court held that state legislative districting issues presented justiciable Fourteenth Amendment equal protection questions. But that was just the beginning. Building on Baker, Gray v. Sanders (1963) held that all votes in statewide elections should be given equal weight (Gray v. Sanders, 1963, p. 381). Most critically for present purposes, in Wesberry v. Sanders (1964) the Court ruled that a state’s congressional districts must be approximately equal in population, and struck down a Georgia arrangement it concluded fell short in this regard. Finally, that same year in Reynolds v. Sims, the justices extended Wesberry to encompass state legislative districts. These cases, in short, signaled a major policy reorientation by the Supreme Court on redistricting issues. Congressional reaction to the decisions was swift. Senator Richard Russell (D-GA) called Baker v. Carr “another major assault on our constitutional system,” and charged the Supreme Court with setting out to destroy the constitutional system of checks and balances. He demanded that “Congress curtail and limit the jurisdiction being exercised by this group before it is too late” (Cortner, 1970, pp. 145–146). The policy fallout from the Court’s reapportionment decisions promised to be a far more personal and immediate threat for many elected politicians than the Warren Court’s other controversial rulings had been (Grove, 2011, p. 902). Perhaps because of the Supreme Court’s invalidation of inequitable congressional districting in Wesberry v. Sanders, opposition centered in the House of Representatives. The Court’s insistence on equality of population at the state level in Reynolds v. Sims must have added insult to injury, since those redrawn state legislatures would ultimately be responsible for apportioning those new congressional districts. Senator Everett Dirksen of Illinois championed a similar, if more moderate measure in that chamber focusing on delaying implementation of the Court’s reapportionment decisions at the state level. However, Dirksen’s efforts—which included a failed attempt to attach his legislation as a rider to a foreign aid bill—proved unsuccessful (Melin, 1965, pp. 537–540; Wolman, 1964; Belknap, 2005, p. 124). One contemporaneous account of the Senate’s failure to act on the measure noted that questions surrounding both its constitutional and practical appropriateness doomed its prospects in the Senate (McKay, 1964, p. 268). As U.S. Senator Quentin Burdick (D-ND) put it, “I voted against it on the Constitutional question. I have very serious doubts that a legislative act can be used in this manner to correct a Supreme Court ruling” (1964 Congressional Action). Those doubts and, perhaps the more indirect potential effects of the decisions on senators, doomed both Dirksen’s proposal and the more far-reaching Tuck Bill when it arrived at the Senate. House members searched for a response to the Court’s decisions immediately. Soon after Baker v. Carr, two

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

conservative Virginia Democrats—Watkins Abbitt and William Tuck—introduced legislation designed to deprive all federal courts of jurisdiction to decide reapportionment issues. According to this line of thinking, the courts would have no ability to ensure compliance with these rulings if Congress could remove their legal authority to adjudicate reapportionment cases. By the end of 1964 twenty-seven House members from fourteen states had sponsored similar legislation, and several more introduced measures designed to block or postpone implementation of the Court’s reapportionment decisions. In an unusual parliamentary move, on August 13, 1964, a majority of Rep. Howard W. Smith’s (D-VA) Rules Committee voted to remove Rep. Tuck’s measure from the House Judiciary Committee, where it had languished without a hearing. The House Judiciary Committee Chair, Rep. Emanuel Celler (D-NY), said of the Rules Committee’s Action, “Tammany Hall in its wildest moments would never have tried anything like this” (1964 Congressional Action). Ultimately, the House voted to enact HR 11926, the “Tuck Bill,” by a vote of 218–175. That legislation, though it ultimately died in the United States Senate, was designed to eliminate the Supreme Court’s ability to weigh the constitutionality of state legislative and congressional apportionment plans. Thus, for the first time since Ex parte McCardle (1869), a majority of one house of Congress voted to limit a particular aspect of the Supreme Court’s constitutional jurisdiction. This provided advocates of jurisdiction-stripping a contemporary precedent for seeking to counteract judicial policy making in such a fashion. It is, therefore, important to investigate the motivations driving this foundational debate over the modern politics of Supreme Court jurisdiction to achieve a broad historicopolitical understanding of this concept. 4. Theory and hypotheses Prior examinations of congressional reactions to Supreme Court decisions suggest that members orient their voting behavior in such circumstances toward the maximization of certain goals (Bell & Scott, 2006; Clark, 2011; Devins, 2006), most particularly reelection (Fenno, 1973; Mayhew, 1974). Typically, this concern for reelection has been expressed as members needing to be mindful of public opinion. However, numerous studies have addressed the impact of electoral concerns on career decisions, demonstrating that changes in legislative districts may influence certain members to retire or encourage them to risk the pursuit of higher office (Hall & Van Houweling, 1995; Kiewiet & Zeng, 1992). Still, the corollary assumption has been that state legislative actions—not policy pronouncements from the Supreme Court—have structured those career choices through their implementation of redistricting. But when the Court announced the reapportionment decisions in the 1960s, this too created uncertainty for many House members. Shortly thereafter, a majority of the House was on record in support of curbing the Supreme Court’s jurisdiction over a specific class of constitutional cases. The reapportionment cases were a threat to the selfinterest of numerous members of Congress on a variety

5

of fronts. The concrete result of the Court’s decision in Wesberry v. Sanders was to imperil certain members more than others. As a consequence of the Court’s action, many legislators who had been insulated from reapportionment were put on notice that they could retire, pursue higher office, or compete for reelection in more equitable districts according to the Supreme Court’s standards. In that climate, the idea of limiting the Court’s appellate jurisdiction might have appealed to these members. The existing literature suggests that factors including electoral security and institutional seniority may lead politicians to mount jurisdictional attacks on the Court although scholarship generally holds that support for these proposals tends to be motivated by members’ desires to represent constituency interests by engaging in actions that are devoid of policy consequences (Whittington, 2007, p. 137). The possibility that members’ votes may have been influenced, not just by the position-taking that has been thought to motivate jurisdiction-stripping, but also the prospect that the bill’s passage might bring some measure of substantive relief from judicial oversight of redistricting is a chief consideration of this study. This study thus investigates the extent to which the forces structuring the House’s vote on the Tuck Bill might have represented something beyond position-taking. Moreover, the Court’s decisions may have threatened electorally secure members with substantial reservoirs of institutional seniority. Electorally safe representatives arguably had more to lose than their colleagues in historically competitive districts. Because they presumably favored the pre-Wesberry status quo, electorally secure members acting out of self-interest should have been particularly supportive of the Tuck Bill. Similarly, the prospect of electoral defeat might have been especially devastating for well-established members who possessed or would soon possess substantial power and influence in the House. However, not all House members were equally affected. In some states, no congressional district deviated significantly from the average or ideal district population; in others, every district did (Dixon, 1968, pp. 165–166). Similarly, the rural vs. urban character of certain districts may have influenced votes on the measure, as more rural areas stood to be especially disadvantaged by the rulings. Several members of the 88th Congress represented at-large districts in states having more than one representative, and that status may have influenced their views on the merits of the Tuck Bill as well. In the 1960s, courts used at-large elections as a means to coax state legislatures into compliance with reapportionment decisions. However, a number of states utilized at-large congressional seats by choice, and those representatives may have been threatened by federal court involvement with reapportionment, in part because “. . .election[s] at-large could be adverse to the interest[s] of an underrepresented urban section of the state if that section were not large or influential enough to control the election” (Dixon, 1968, pp. 165–166). Although the use of multimember districts was not directly addressed in the reapportionment decisions, subsequent developments would underscore the Court’s willingness to extend its reach into such matters (Burns v. Richardson, 1966, p. 88; Fortson v. Dorsey, 1965, p. 439). Perhaps these at-large

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

6

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

representatives anticipated that the Court’s involvement in reapportionment might extend to an examination of their situations as well.9 But this jurisdictional debate provided opportunities beyond self-interest for members; it also allowed them to court public opinion by attacking an institution that was quite unpopular. For one, it gave members an opportunity to express their own ideological disagreement with the Warren Court’s increasing activism. As such, ideologically conservative members of the House should have supported curbing the Court’s jurisdiction over reapportionment cases to a greater extent than their more liberal counterparts. This hypothesis flows from the intertwined pursuit of policy preferences and constituency representation that drive legislative behavior, and might result from distaste with both the Court’s specific reapportionment decisions and disaffection with its jurisprudence on civil rights and liberties more generally. The utilization of jurisdiction-stripping in order to “position-take” for ideological and electoral purposes has been noted by numerous scholars (Devins, 2006; Goelzhauser, 2012; Whittington, 2007). If members relied on representation-related considerations in formulating their positions on the Tuck Bill, then Southern legislators may have been especially supportive of curbing the Court’s jurisdiction after controlling for other factors. As a general matter, the Warren Court’s decisions—particularly those regarding racial desegregation—made both the Supreme Court and the lower federal courts highly unpopular in the South (Patterson, 2001; Peltason, 1971). Moreover, a disproportionate share of reapportionment cases came from Southern and border states including Tennessee (Baker v. Carr), Georgia (Gray v. Sanders; Wesberry v. Sanders), and Alabama (Reynolds v. Sims). Previous research also suggests that both members’ committee assignments and occupational backgrounds influence legislative behavior toward the courts. Legislators with legal training are loathe to challenge judicial rulings—even those they perceive as misguided (Miller, 1993a, 1993b) There is also limited evidence that Judiciary Committee membership may be another important background predictor of legislative activity vis-à-vis the courts (Spill Solberg & Heberlig, 2004). In sum, the House vote on the 1964 Tuck Bill affords a unique opportunity to test the influence of several factors on a response to the Supreme Court’s reapportionment decisions that, based on Devins (2006), may have coincided with a recalibration of thinking regarding the goals of jurisdiction-stripping. Beyond that, with its relevance to electoral factors, policy goals, and constituency representation, the episode offers further insights into the ways members of Congress make decisions about federal court oversight.

9 In 1967, Congress passed legislation prohibiting at-large and other multi-member elections in states with more than one House seat. Debate on the measure indicates that one motive for its passage was to prevent at-large elections from diluting the voice of minorities in the wake of the 1965 Voting Rights Act (113 Cong. Rec. 34365).

5. Data and methods Logistic regression is used to examine the impact of several variables on members’ votes on the Tuck Bill. To test the hypothesis that conservatives were more supportive of the jurisdictional measure than more liberal representatives, the NOMINATE scores of Poole and Rosenthal (2000) are employed. Because higher values of that measure are indicative of greater ideological conservatism, that variable’s coefficient should be statistically significant and positive in value. The impact of both institutional seniority and prior margin of electoral victory on legislators’ votes on the 1964 jurisdiction-stripping bill is also tested, as some prior studies have considered the influence of such factors on the more general activity of court-curbing. The seniority variable captures the natural log of the number of two-year terms each individual legislator served prior to the 88th Congress. The second variable, margin of victory, includes the difference between a representative’s 1962 vote share and that of his nearest competitor. Prior research (Bell & Scott, 2006) finds that members with more seniority are especially likely to support such curbs but that victory margin is not predictive of support. This study tests the applicability of those recent conclusions to the case study of jurisdiction-stripping. If senior and electorally secure representatives advocated curbing the Court’s jurisdiction over reapportionment-related issues in the interests of self-preservation, the coefficients on these two variables should be positive and significant. Perhaps the most obvious impact of self-interest in this area arises from the differential impact the Supreme Court’s reapportionment decisions were poised to have for individual legislators. However, operationalizing the degree to which the congressional districting schemes in force at the time of the Tuck Bill’s passage met the Court’s criteria for constitutionality requires some care. District-specific characteristics are captured in two ways. First, historical data on both state- and district-level population density is used to construct a proxy measure for the rural nature of each district; the population per square mile within each congressional district is substracted from each state’s overall average population per square mile (Adler, 1963; Congressional District Data Book, 1961). This yields a Rural Population variable with higher positive values signifying sparsely populated, rural areas and more negative scores representing densely populated urban areas.10 Population Deviation is then measured within each district to signify the percentage by which each congressional district’s population deviated from the ideal or mean population.11 Rural

10 We would like to thank an anonymous reviewer for suggesting we explore this possibility. As an illustration of our approach, California’s state-level population per square mile was 100.4, whereas its most rural district (Rep. Harold Johnson) had a population density of just 7.6 citizens per square mile and its most urban district (Rep. Philip Burton) had a population density of 18,247.3 citizens per square mile. Subtracting these figures from the statewide average yielded Rural Population measures of 92.8 and −18,146.9, respectively. 11 For example, dividing Arizona’s total population by the state’s number of congressional districts yields a target district size of 551,962. At 198,000,

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

Population is expected to be positive because more rural districts were thought to wield outsized political power prior to the Court’s. Representatives from more rural districts, signified by larger and more positive values of this variable, should be especially likely to support the Tuck Bill. These two measures are not highly correlated, so including both in a multivariate model simultaneously does not raise concern about multicollinearity.12 Included is a dichotomous variable, Unified State Government, which is equal to one where a Republican (Democrat) representative is from a state in which the governorship and state legislature are controlled by Republicans (Democrats). This variable is an additional control to test whether member support for the jurisdictional measure was dependent upon a perception that fellow partisans in a state might be positioned to protect a given member in the event district arrangements might need to be revised. As previously noted, a dichotomous variable is included to capture representatives from at-large districts in states with more than one House member; that variable is expected to be positive and significant. District-level data was unavailable, so a state-level measure of Public Liberalism captures the potential role of constituent opinion in predicting votes on the measure. The Berry, Ringquist, Fording and Hanson (1998) citizen ideology measure from the year 1964 is used to test this possibility.13 Because higher values of this variable signify increasing public liberalism, it should be negatively related to support for the Tuck Bill—representatives of more liberal areas should have been predisposed to oppose the measure. Also considered are several variables related to legislators’ backgrounds, including their vocational training, committee assignments, and regional background. The hypothesis is that both legal training and greater policy awareness should accompany Judiciary Committee membership and lead both lawyers and House Judiciary Committee members to oppose the Tuck Bill’s drastic jurisdictional curbs, although those expectations are rather tentative in light of subsequent research suggesting that such individuals have been especially likely to attack the courts in more recent times (Miller, 2009). Because legal training and Judiciary Committee membership are coded 1, the coefficients for these dichotomous variables are expected to be negative. Finally, regional background is captured with a dichotomous South variable that takes a value of 1 if a representative is from a Southern or border state and zero otherwise. The analysis employs robust

Rep. Senner’s district was 64.13% smaller than this number and this observation was scored −64.13. By contrast, Rep. Rhodes’s district was 20.21% larger than this average and was scored +20.21. In contrast to the measure of Rural Population, the sign for Population Deviation is hypothesized to be negative. Representatives from less populated districts, advantaged by the absence of regular and equitable redistricting, should be more likely to support curbing the Court’s jurisdiction here. 12 The correlational relationships between all variables in the models are tested. The largest bivariate correlation between any of the variables was between South and Public Liberalism, though even that association (r = −.63) was not high enough to cause concern. 13 After lagging this opinion variable by one year, the results of the logit analysis were virtually identical.

7

Table 1 Logit analysis of member votes, 1964 Tuck Bill. Variable

Coefficient (Robust S.E.)

Change in probability

Conservatism (+)

7.64*** (.898) .127 (.573) .016** (.007) .343* (.2261) .958 (1.28) .478 (.392) −.032*** (.007) .0000593** (.00003) .090 (.481) .039 (.324) −.048*** (.020) −.772 (.468)

.399

South (+) Margin of victory (+) Log of seniority (+) At-large (+) Unified State Government (−) Population deviation (−) Rural population (+) Judiciary committee (−) Lawyer (−) Public liberalism (−) Constant N % Correctly predicted PRE Pseudo R2: .5614 Log-likelihood: −118.45483 Wald chi2(10): 185.38 Prob > chi2: .0000

.032 .113 .067 .175 .110 .299 .153 .021 .010 .175

393 89.1% 75.4%

*

Significant at .1 level (one-tailed). Significant at .05 level (one-tailed). *** Significant at .01 level (one-tailed). Probabilities represent the growth (or decline) in the probability of casting a vote in favor of the Tuck Bill—for every one standard deviation change in the independent variable or from 0 to 1 for dummy variables—while holding all other independent variables constant. **

standard errors clustered on state in order to account for potential correlation in the error term. 6. Results The results of the logit analysis are presented in Table 1. The model appears to provide a good explanation of members’ positions on the Tuck Bill. As noted in Table 1, the model correctly predicts 89.1% of the observations in the data and yields a 75.4% reduction in error. The results reported in Table 1 lend support to several hypothesized relationships. First, the variable capturing members’ conservatism is highly significant, validating the critical role that previous analyses of Court-Congress relations have ascribed to ideological predispositions (Bell & Scott, 2006; Peabody, 2006; Spill Solberg & Heberlig, 2004). The results also strongly suggest that state-level public opinion played a role in decisions to support the Tuck Bill. In addition to being consistent with a priori expectation, these findings validate the importance of constituency preferences and their representation in this jurisdictional debate. In contrast to the above variables, neither legal training nor judiciary committee membership were statistically

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

8

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

significant. Moreover, in an auxiliary analysis not displayed here, these variables remained insignificant after being interacted with a member’s level of ideological conservatism. However, the results lend some support to the idea that more substantive motivations may have been important to legislators in this case. As was hypothesized, well-established House members in terms of both seniority and prior margin of electoral victory were likely to support the Tuck Bill’s passage. The margin of victory variable exhibits clear statistical significance, and member seniority just attains significance. It is unclear whether these relationships owe more to the relative freedom of action that seniority and electoral security may provide legislators or to the larger potential loss such members are poised to experience upon electoral defeat. The speculation that at-large legislators might be significantly more likely to support limiting jurisdiction over reapportionment cases than their colleagues is not supported, nor is the South variable significant, although its coefficient is signed in the expected direction. The population deviation variable’s coefficient is statistically significant, suggesting that representatives from particularly underpopulated congressional districts were especially wary of judicial involvement in the redistricting process. Rural population is also significant and in the hypothesized direction. Members from less populous and more rural districts may have feared the changes the Court was likely to require and sought to enact the Tuck Bill’s jurisdictional roadblocks in an effort to prevent them. To illustrate the substantive impact of various factors on a member’s likelihood of supporting jurisdictional change, Table 1 contains simulated probabilities for each of the predictor variables in the data set. From those estimates, it is clear that increasing ideological conservatism by one standard deviation elevates a representative’s baseline probability of supporting the Tuck Bill by .399. Winning the previous election by a wide margin increases that baseline’s probability by .113 and an additional unit increase in a legislator’s seniority enhances favoring passage by .067. Constituent preferences exerted a clear role, with a one unit decrease in public liberalism increasing the odds of supporting the measure by 17.5%. While these variables account for a good deal of the dependent variable’s variation, the district-level characteristics used as proxies for the likelihood that the Court’s decisions would impact a representative’s district boundaries are significant as well. The predicted probabilities contained in Table 2 illustrates more concretely the relationship between vulnerability to the Court’s reapportionment decisions, captured by a district’s rural vs. urban character as well as its degree of deviation from the ideally populated district, and a member’s probability of supporting the Tuck Bill. A hypothetical member from a district that was average on both these dimensions had roughly a 51% chance of supporting the jurisdiction-stripping proposal. Rural representatives from severely underpopulated districts were virtually certain to support the Tuck Bill, at a probability of .88. Representatives from underpopulated districts in more average and urban areas were still more likely to support the measure than representatives from more equitably drawn or overpopulated districts, but their respective

Table 2 Predicted probability of support for Tuck Bill. Rural/urban district status

Prob. of yes vote

Low population district

Rural Average Urban

.88 [.74, .96] .80 [.64, .91] .67 [.41, .87]

Average population district

Rural Average Urban

.66 [.45, .84] .51 [.36, .66] .35 [.18, .56]

High population district

Rural Average Urban

.34 [.14, .61] .21 [.11, .35] .12 [.05, .24]

Simulated probabilities are calculated using the Clarify program (Tomz, Wittenberg, & King, 2003) by setting population deviation and rural population to their minimum, mean, and maximum values in the data while holding all other variables from Table 1 constant at their means (for continuous variables) or their modes (for dichotomous variables).

probabilities of voting yes were .80 and .67. At a probability of just .12, representatives from severely overpopulated urban districts were extremely unlikely to support the jurisdictional curb. This basic pattern holds under all three population deviation scenarios, with rural representatives in each category being more likely to vote yes than those from districts of an average rural/urban mix and those representatives, in turn, being more likely to support the measure than their urban counterparts. A number of factors proved to be significant determinants of member positions on this jurisdiction-stripping measure. Traditional factors that are often tied to legislative position-taking, such as ideological conservatism and constituent preferences, exerted an important effect. However, the potential for the reapportionment decisions to make certain members (margin of victory, seniority) from certain types of districts (rural, underpopulated) less secure appears to have figured prominently as well. This suggests that motivations for supporting the jurisdictional measure extended beyond the position-taking that is thought to characterize advocacy of contemporary jurisdictionstripping proposals. The multiplicity of motivations, both symbolic and substantive, seem to more accurately reflect the goal of certain members to “undo what the Court had done [because they] had very strong feelings about Congress’s power to independently interpret the Constitution” (Devins, 2006, p. 1339) than does the simpler, if more contemporary, story of jurisdiction-stripping as mere symbolism. 7. Discussion The results of this analysis are indicative of several important conclusions. First, they illustrate the impact of substantive, ideological, and electoral considerations on individual legislators’ views on matters of judicial policy. When it comes to policy efforts designed to limit federal judicial power, members of Congress seem mindful of many of the same factors that structure legislative behavior more generally (Clark & McGuire, 1996, p. 778). However, the analysis is also significant because of the insights it provides into Congressional motivations

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

for undertaking jurisdiction-stripping campaigns. Most contemporary examinations treat such efforts as positiontaking and manifestations of symbolic politics.14 Whatever the potential benefits of introducing jurisdiction-curbing legislation, few contemporary analysts believe securing a bill’s actual passage is among them (Bell & Scott, 2006; Fitzgerald & Cooperman, 2004; Hulse, 2004a, 2004b; Vascellaro, 2004). The modern historical record indicates these efforts are doomed and rational legislators are presumably aware of that history. However, the results of this study suggest there is at least one notable exception. While legislators’ positions on the Tuck Bill were indeed shaped by ideological principles and the representation of constituent views, the substantive significance of variables directly related to an individual’s vulnerability to the decisions suggests that some were additionally influenced by self-interested concerns. Specifically, those who were placed in greater electoral jeopardy by the Court’s reapportionment decisions were more likely than were their colleagues to support the Tuck Bill’s jurisdictional attack. In other words, members seem to have developed their positions on the Tuck Bill as if they viewed the legislation as being more than symbolic. Broadly construed, this is consistent with Devins’s conclusion about the shifting goals of these jurisdictional efforts across time. The 1964 Tuck Bill was the first of a handful of contemporary jurisdiction-stripping proposals to clear one chamber of Congress only to die in the other. It arguably represents one of the first serious congressional efforts to push back against the federal judiciary’s progressivism via jurisdictional means, a conservative agenda that continues to this day. More indirectly, the debates over the Tuck Bill provide an opportunity to examine how legislators early in the modern court-stripping era viewed these jurisdictional measures. Although ideological concerns played the most prominent role, certain legislators appear to have been motivated by other, more substantive goals as well. Member motivations for supporting jurisdiction-stripping may have evolved since 1964—in no small part due to more settled congressional expectations about the Court’s role in policymaking (Peabody, 2004)—and there is a strong temptation for observers today to marginalize jurisdictionrelated responses to judicial decisions as symbolic politics. At the same time, while some of this study’s conclusions echo those of previous examinations into congressional oversight of the courts, they also caution that the historical motivations behind member support for jurisdictional curbs may be somewhat richer and more complex than is commonly believed.

References Abraham, H. J. (1981). A self-inflicted wound? Judicature, 65, 179–184.

14 Consider the National Review’s description of the Marriage Protection Act, which passed the House of Representatives in the summer of 2004: “The House made a symbolic strike against federal courts on same-sex marriage. The bill it voted for would strip those courts of jurisdiction over challenges to the Defense of Marriage Act.” “The Week. . .” National Review 56 (2004): p. 9.

9

Abrams, J. (2006). House OKs bill guarding pledge from courts. Washington, DC: Washington Post. Adler, E. S. (1963). Congressional district data file. Boulder, CO: University of Colorado. Baker v. Carr. (1962). 369 U.S. 186. Bamberger, M. (2000). Reckless legislation: How lawmakers ignore the Constitution. New Brunswick, NJ: Rutgers University Press. Belknap, M. (2005). The Supreme Court under Earl Warren, 1953–1969. Columbia: University of South Carolina Press. Bell, L. C., & Scott, K. M. (2006). Policy statements or symbolic politics? Explaining congressional court-limiting attempts. Judicature, 89, 196–201. Berry, W. D., Ringquist, E. J., Fording, R. C., & Hanson, R. L. (1998). Measuring citizen and government ideology in the American states, 1960–1993. American Journal of Political Science, 42, 327–348. Boumediene v. Bush. (2008). 553 U.S. 723. Burns v. Richardson. (1966). 384 U.S. 73. Casper, J. D. (1976). The Supreme Court and national policy making. American Political Science Review, 70, 50–63. Clark, T. (2011). The limits of judicial independence. Cambridge: Cambridge University Press. Clark, J. A., & McGuire, K. T. (1996). Congress, the Supreme Court, and the flag. Political Research Quarterly, 49, 771–781. Colegrove v. Green. (1946). 328 U.S. 549. 1964 Congressional action. (1965). CQ almanac 1964 (20th ed.). Washington, DC: Congressional Quarterly. http://library.cqpress.com/ cqalmanac/cqal64-1304674 (1961). Congressional district data book. Washington, DC: United States Bureau of the Census. Cortner, R. C. (1970). The apportionment cases. Knoxville: University of Tennessee Press. Dahl, R. A. (1957). Decision making in a democracy: The Supreme Court as a national policy-maker. Journal of Public Law, 6, 279–295. Devins, N. (2006). Should the Supreme Court fear Congress? Minnesota Law Review, 90, 1337–1362. (1964). Digest of Public Bills and Resolutions. Washington, DC: (Library of Congress) Congressional Research Service. Dixon, R. G., Jr. (1968). Democratic representation: Reapportionment in law and politics. New York: Oxford University Press. Epstein, L., & Walker, T. G. (2004). Constitutional law for a changing America: Rights, liberties, and justice. Washington, DC: CQ Press. Eskridge, W. N., Jr. (1991). Overriding Supreme Court statutory interpretation decisions. Yale Law Journal, 101, 331–450. Ex parte McCardle. (1869). 74 U.S. 506. Fallon, R. H., Jr., Meltzer, D. J., & Shapiro, D. L. (1996). Hart and Wechsler’s the federal courts and the federal system. Westbury, NY: Foundation Press. Fenno, R. F., Jr. (1973). Congressmen in committees. Boston: Little, Brown. Fitzgerald, M., & Cooperman, A. (2004). Marriage protection act passes: House bill strips federal courts of power over same-sex cases. Washington, DC: Washington Post. Fortson v. Dorsey. (1965). 379 U.S. 433. Goelzhauser, G. (2012). Jurisdiction-stripping as a response to judicial review. In Paper presented at the Annual Meeting of the Midwest Political Science Association Chicago, IL, April 12–15. Gray v. Sanders. (1963). 372 U.S. 368. Grove, T. L. (2011). The structural safeguards of federal jurisdiction. Harvard Law Review, 124, 869–940. Hall, R. L., & Van Houweling, R. P. (1995). Avarice and ambition in Congress: Representatives’ decisions to run or retire from the U.S. House. American Political Science Review, 89, 121–136. Hamdan v. Rumsfeld. (2006). 548 U.S. 557. Hausegger, L., & Baum, L. (1999). Inviting congressional action: A study of Supreme Court motivations in statutory interpretation. American Journal of Political Science, 43, 162–185. Henschen, B. (1983). Statutory interpretations of the Supreme Court: Congressional response. American Politics Quarterly, 11, 441–458. Hulse, C. (2004a). House backs bill to limit power of judges. New York Times, A19 (July 23). Hulse, C. (2004b). House passes court limits on pledge. New York Times, A17 (Sept. 24). Katz, M. J. (2009). Guantanamo, Boumediene, and jurisdiction-stripping: The imperial president meets the imperial court. Constitutional Commentary, 25, 377–423. Keynes, E., & Miller, R. K. (1989). The Court vs. Congress: Prayer, busing, and abortion. Durham, NC: Duke University Press. Kiewiet, D. R., & Zeng, L. (1992). An analysis of congressional career decisions, 1947–1986. American Political Science Review, 87, 928–941. Ledbetter v. Goodyear Tire & Rubber Co. (2007). 550 U.S. 618.

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006

G Model SOCSCI-1180; No. of Pages 10

10

ARTICLE IN PRESS B. Curry, T.J. Davis / The Social Science Journal xxx (2014) xxx–xxx

Mapp v. Ohio. (1961). 367 U.S. 643. Mayhew, D. R. (1974). Congress: The electoral connection. New Haven, CT: Yale University Press. McKay, R. B. (1964). Court, Congress, and reapportionment. Michigan Law Review, 63, 255–278. Meernik, J., & Ignagni, J. (1997). Judicial review and coordinate construction of the Constitution. American Journal of Political Science, 41, 447–467. Melin, R. A. (1965). Comments: A comprehensive survey of redistricting or reapportionment law: State and federal. Marquette Law Review, 48, 516–561. Miller, M. C. (1993a). Lawmaker attitudes toward court reform in Massachusetts. Judicature, 77, 34–41. Miller, M. C. (1993b). Lawyers in Congress: What difference does it make? Congress and the Presidency, 20, 1–23. Miller, M. C. (2009). The view of the courts from the hill: Interactions between Congress and the federal judiciary. University of Virginia Press: Charlottesville. Miranda v. Arizona. (1966). 384 U.S. 436. Murphy, W. F. (1962). Congress and the Court: A case study in the American political process. Chicago: University of Chicago Press. Patterson, J. T. (2001). Brown v. Board of Education: A civil rights milestone and its troubled legacy. New York: Oxford University Press. Peabody, B. G. (2004). Congressional constitutional interpretation and the courts: A preliminary inquiry into legislative attitudes, 1950–2001. Law & Social Inquiry, 29, 127–175. Peabody, B. G. (2006). Congress, the Court, and the ‘service constitution’: Article III Jurisdiction controls as a case study of the separation of powers. Michigan State Law Review, 2006, 269–326. Peltason, J. W. (1971). Fifty-eight lonely men. Urbana: University of Illinois Press. Pickerill, J. M. (2004). Constitutional deliberation in Congress: The impact of judicial review in a separated system. Durham: Duke University Press.

Poole, K. T., & Rosenthal, H. (2000). Congress: A political-economic history of roll call voting. New York: Oxford University Press. Pritchett, C. H. (1961). Congress versus the Supreme Court, 1957–1960. Minneapolis: University of Minnesota Press. Reynolds v. Sims. (1964). 377 U.S. 533. Rice, C. E. (1981). The constitutional basis for the proposals in Congress today. Judicature, 65, 190–197. Ringquist, E. J., & Emmert, C. F. (1999). Judicial policymaking in published and unpublished decisions: The case of environmental civil litigation. Political Research Quarterly, 52, 1–37. Roe v. Wade. (1973). 410 U.S. 113. Rowland, C. K., & Carp, R. A. (1983). Policymaking and politics in the federal district courts. Knoxville: University of Tennessee Press. Spill Solberg, R. L., & Heberlig, E. S. (2004). Communicating to the courts and beyond: Why members of Congress participate in amicus curiae. Legislative Studies Quarterly, 29, 591–610. The Week. . .. (2004). . National Review (56). Tomz, M., Wittenberg, J., & King, G. (2003). CLARIFY: Software for interpreting and presenting statistical results. Journal of Statistical Software, http://j.mp/k3k0rx United States v. Klein. (1871). 80 U.S. 128. Vascellaro, J. E. (2004). House passes ban on gay marriage rulings: Would bar decisions by federal judges on states’ recognition. Boston: Boston Globe (July 23). Warren, E. (1977). The memoirs of Earl Warren. Garden City, NY: Doubleday. Wesberry v. Sanders. (1964). 376 U.S. 1. Whittington, K. E. (2007). Political foundations of judicial supremacy: The Presidency, the Supreme Court, and constitutional leadership in U.S. History. Princeton: Princeton University Press. Wolman, H. (1964). The Dirksen rider: Rural rip at reapportionment. The Michigan Daily (1 September).

Please cite this article in press as: Curry, B., & Davis, T.J. Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting. The Social Science Journal (2014), http://dx.doi.org/10.1016/j.soscij.2014.05.006