Executive Discretion, Judicial Decision Making, and Separation of Powers in the United States

Existing work on the U.S. separation of powers typically views the Supreme Court as the final arbiter of constitutional and statutory disputes. By contrast, much comparative work explicitly recognizes the role of executives in enforcing and implementing court decisions. Drawing on that work, this study relaxes the assumption that executives must comply with Supreme Court rulings, and instead allows the propensity for executive compliance to depend upon indirect enforcement by the public. We develop a simple model of Supreme Court decision making in the presence of executive discretion over compliance and demonstrate that such discretion can restrict substantially the Court's decision making. Using data collected for the Warren and Burger courts, we find evidence consistent with the argument that the Supreme Court's ability to constrain exective descretion depends critically upon the public.