The Distinctiveness of the Supreme Court: An Historical Institutionalist Perspective

Abstract

This essay challenges the assimilation of the U.S. Supreme Court by a diverse array of political scientists by analogy to either a legislature or an executive branch bureaucracy. Using a schematic map of the basic underlying structure of the U.S. Constitution’s core institutions, I argue that the Court, considered as an institution, is sui generis and distinctive, and should be studied as such. The Article I Congress is structured horizontally. As such, the chief institutional challenges it confronts are collective action problems, which can be resolved through rewards, punishments, bargains, trades, side-payments, leadership, and caucusing. The Article II executive is structured vertically. As such, the chief institutional challenges it confronts are principal-agent problems, which can be resolved through monitoring and command and control. The Article III Supreme Court is structured triadically. As such, the chief institutional challenges it confronts involve problems of authority and legitimacy, which can be resolved through justification. The study of judicial politics should not elide these core institutional differences and dynamics, but rather should recognize and embrace them.