Voting for the President: The Supreme Court During War
An extraordinary body of scholarship suggests that wars, especially major wars, stimulate presidential power. And central to this argument is a conviction that judges predictably uphold elements of presidents’ policy agendas in war that would not withstand judicial scrutiny in peace. Few scholars, however, have actually subjected this claim to quantitative investigation. This paper does so. Examining the universe of Supreme Court cases to which the United States was a party over a 75-year period, and estimating a series of fixed-effects and matching models, we find that during war Justices were 13 percent more likely to side with the U.S. Government on the subset of cases that most directly implicated the president. These estimates are robust to a wide variety of model specifications and do not appear to derive from the deep selection biases that pervade empirical studies of the courts.
