The Decline of Supreme Court Deference to the President

University of Pennsylvania Law Review 166: 829-860 (2018)

Lee Epstein
Eric Posner

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 However, a new analysis of the data reveals that the conventional wisdom is out of date.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.

Click here for the article
Click here for the (provisional) dataset, ver. 2 (corrected, updated, and posted January 8, 2017).

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.