By Anna Harvey
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Additional info for A Mere Machine: The Supreme Court, Congress, and American Democracy
59 Justice Stephen Breyer points to Cooper v. 60 It is possible that our estimates of the Court’s deference to elected branch preferences do not generalize to such cases. But although it is possible, it is perhaps not very probable. The elected branch powers to discipline and reward the justices are not limited to cases involving constitutional rulings on federal statutes. These cases are used here simply because they present easily measurable outcomes. But we have no obvious reason to think that the judicial deference to elected branch preferences reported here is limited to these cases.
In fact, they are subject to an additional sanction to which the justices are not, namely the power of elected branch majorities to dissolve their courts. Their decisions, moreover, may be appealed to the Supreme Court and thereby modiﬁed or even overruled by justices apparently deferential to elected branch preferences, as least in cases involving federal judicial review. We have no evident reason to suspect that the constitutional sanctions available to elected branch majorities would induce deference among the justices of the Supreme Court, but not among the judges of the inferior federal bench.
In part this may be because even well-designed incentives are unlikely to be perfectly effective. If our goal is to secure maximal judicial deference to elected branch preferences, then presumably the most effective way to achieve that goal is simply to prohibit courts from overruling elected branch decisions. But in part the apparently negative consequences of judicial review, even as exercised by democratically accountable courts, may stem from the nature of judicial review as an institutional practice.