The Specter of Supreme Court Criticism: Public Opinion and Unilateral Action

The conventional wisdom suggests that the judicial constraint on presidential unilateralism is weak: judicial challenges are rare and successful ones rarer still. However, we argue that courts have grown increasingly assertive in checking important unilateral policy initiatives in both the foreign and domestic arenas. This judicial reassertion also raises the prospect that courts may exert a more informal constraint on presidential power. Utilizing two experiments embedded on nationally representative surveys, we find evidence that even speculation about a judicial challenge can erode public support for unilateral action. For some issues the effect may be conditional on diffuse support for the Court. Anticipations of these political costs may help explain the relative paucity of major unilateral actions.