Understanding the 'Imperial Court'
USC Gould School of Law

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Monday, July 31, 2023

Research by Professors Rebecca Brown and Lee Epstein reveals troubling trend in SCOTUS decisions

By Leslie Ridgeway

Lee Epstein, left, and Rebecca Brown

If a president overreaches, will the U.S. Supreme Court check their power? It depends on whether the president shares the Court’s views, according to a forthcoming paper by Professor Rebecca Brown and Professor Lee Epstein.

The paper, “Is the U.S. Supreme Court a Reliable Backstop for an Overreaching U.S. President? Maybe, but is an Overreaching (Partisan) Court Worse?” will be published in late 2023 in Presidential Studies Quarterly, as part of a symposium on presidents who exceed their authority. Brown and Epstein studied voting data and doctrine in SCOTUS cases going all the way back to 1937 to determine whether and how the current Court differs from other courts. The findings left them concerned.

“[Americans] could once count on [SCOTUS] to step up in cases of overreaches — for example, when the Court ruled unanimously against [President Richard] Nixon [in 1974] — but in this study, we were not able to conclude that this Court would be a backstop against a president sympathetic to its own views,” Brown says. “The Court has shown a real inclination to take on the role of ultimate policy-maker in the country, and that leads us to worry that their willingness to curb an overreaching president would likely depend on whether they like what the president did or not, rather than standing up more neutrally for principles based in the rule of law.”

“Someone called it ‘the Imperial Court,’” says Epstein. “There is nothing checking the justices and they are taking full advantage to do whatever they want.”

The paper was highlighted in a December story in The New York Times on legal research indicating SCOTUS has been consolidating power from federal and state branches of government. Also, “there are increasingly frequent indications that the Court is establishing a position of judicial supremacy over the president and Congress,” they wrote. Brown noted that when the Court deferred in the past to a president, it did not declare whether the president was right or wrong. The study indicates the Roberts Court has been less deferential.

“The current Court more often says, ‘We support you because we think you did the right thing,’” Brown says. “It sounds like a minor difference, because the president might win either way, but it’s the difference between a court that preserves a government of co-equal branches and one that takes all decisions to itself.”

Brown and Epstein didn’t necessarily find the results of their research surprising, considering the fraught political climate in America.

“We are in this place that is rare in American history, with such a polarized public and polarized partisan elected institutions,” Epstein says. “If the Court gets way out of line with public opinion or democracy, how will you get laws passed? How do you threaten the Court to get back to business?”

Brown and Epstein are both excited about their new collaboration, an enriching blend of data and constitutional theory. They hope their research gets the attention of Congress and results in some sort of regulation of SCOTUS, though any kind of legislative reform is unlikely to happen in the current climate, they noted.