The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional policy decision that cannot, as a legal or practical matter, be modified by the Court. Examples include Congressional decisions to appropriate funds, to enact certain types of mitigating legislation, or to orient legislation in particular constitutional clauses. A Justice's consideration of this third constraint (i.e., how a vote will affect a particular "insulated base rule") is a process I call "stacking." Leaving more sophisticated theoretical models and large-scale empirical studies for a later time, this paper illustrates adjudicative "stacking" through close study of the Supreme Court's recent opinions in Virginia v. Moore.
Luke M. Milligan,
Stacking in Criminal Procedure Adjudication;Symposium on Criminal Procedure: Judicial Proceedings,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol85/iss1/17