Abstract:

What role has the US Supreme Court played in the liberalization of the American economy over the last three decades? By examining more than 800 cases of judicial review on issues related to economic policy-making between 1946 and 2012, we show that the Court participated in the post-1980s shift to the market economy through disciplining non-complying governmental actors that refused to fall in line with the liberalization agenda. We term this process ‘institutional gardening’: the Court allowing some policies to flourish while weeding out others, gradually nudging governmental actors toward a particular political vision. This is a cumulative process, involving many routine Court decisions rather than a few landmark cases. We find that the frequency with which businesses are able to bring their cases before the Court, typically under the conditions of low media attention, drives the push toward economic liberalization.