The graph shows the win rate of presidents in the Supreme Court. The historical win rate was well over 60%, reaching nearly 80% during the Reagan administration. It has declined steadily since then, bottoming out at close to 50% for Obama. It is easy to predict that Trump will do even worse. A 20 year trend begs for explanation.
What could it be? Lee Epstein and I evaluate four hypotheses.
- Increasing ideological distance between the president and median justice? No.
- A Court beating back executive overreach? No.
- A Court engaging in overreach itself? Maybe.
- The rise of a specialized Supreme Court bar? Maybe.
We’ll need to do more work in order find out for sure. Selection effects are complicated. But this paper presents some initial findings.