Executive Orders Under Judicial Scrutiny: The Role of Partisanship in Judicial Outcomes

Scholars have extensively examined the executive branch's success in the federaljudiciary, principally through the Solicitor General's influence on the U.S. Supreme Court. Yet, scholars have focused little attention on the factors that affect the president's ability to successfully defend legal challenges to executive orders. This question is especially important given the president's increasing reliance on executive orders to enact policy. I argue that presidential success in defending executive orders is influenced by the political context of an executive order's issuance, particularly the dynamics of divided versus unified government and how they interact with partisan alignment. I contend that copartisan and non‐copartisan judges rule favorably towards the executive at similar rates during divided government because executive orders issued during divided government are less substantively controversial, as presidents aim to issue orders less that are likely to receive legislative and judicial pushback. I construct an original data set of all litigation in federal courts involving executive orders enacted since 1945. I present several key findings. First, I show that the president's ability to successfully defend their executive orders varies considerably. I find a statistically significant relationship indicating that copartisan judges (i.e., those appointed by presidents of the same party as the sitting president) are more likely to rule in favor of the president when reviewing orders issued during periods of unified government compared to those issued during divided government. In contrast, non‐copartisan judges are more likely to rule favorably during divided government. This study underscores the importance of understanding the partisan factors that affect judicial decision‐making on executive orders.