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The Decline of Supreme Court Deference to the President

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The Decline of Supreme Court Deference to the President — Lee Epstein
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Lee Epstein
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Lee Epstein
Bio
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Bio
Curriculum Vitae
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The Decline of Supreme Court Deference to the President Lee Epstein and Eric Posner University of Pennsylvania Law Review  166: 829-860 (2018) Click  here  for the article Click  here  for the (provisional) dataset, ver. 2 (corrected, updated, and posted January 8, 2017). Abstract According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the Solicitor General’s office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, which won nearly 80% of the cases, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate, barely 50%. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to growing self-assertion of the Court and the development of a specialized private Supreme Court bar. We find no evidence for two other possible explanations—that the trend is due to greater executive overreaching than in the past, or ideological disagreements between the Court and the presidency. The  New York Times  covered an earlier version of this study at:  Why Obama Struggled at Court, and Trump May Strain to Do Better,  January 23, 2017. The study and related materials are  here . keywords: Supreme Court, presidential deference, executive power, solicitor general, judicial ideology, Chevron doctrine, executive overreach, judicial activism, specialized Supreme Court bar, presidential win rates
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