Article: ““Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court” Author: Keith E. Whittington Issue: November 2005 Journal: American Political Science Review This journal is published by the American Political Science Association. All rights reserved.
APSA is posting this article for public view on its website. APSA journals are fully accessible to APSA members and institutional subscribers. To view the table of contents or abstracts from this or any of APSA’s journals, please go to the website of our publisher Cambridge University Press (http://journals.cambridge.org). This article may only be used for personal, non-commercial, or limited classroom use. For permissions for all other uses of this article should be directed to Cambridge University Press at permissions@cup.org . “Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court KEITH E. WHITTINGTON Princeton University Theexerciseofconstitutionalreviewbyanindependentandactivejudiciaryiscommonlyregardedas against the interest of current government officials, who presumably prefer to exercise powerwithout interference. In this article, I advance an “overcoming obstructions” account of whyjudicial review might be supported by existing power holders. When current elected officials are obstructedfrom fully implementing their own policy agenda, they may favor the active exercise of constitutionalreview by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. Thisprovides an explanation for why current officeholders might tolerate an activist judiciary. This dynamicis illustrated with case studies from American constitutional history addressing obstructions associatedwith federalism, entrenched interests, and fragmented and cross-pressured political coalitions.Howdoweaccountforjudicialactivisminacon- Mostroutinely,thepoliticalappointmentsprocesscre-
text in which judges are assumed to be favor-
ates regular opportunities for elected officials to bring
ably disposed toward a governing coalition’s
the Court into line with political preferences (Dahl
political agenda? It is relatively easy to understand why
1957; Stimson, Mackuen, and Erikson 1995). Despite
an institution like judicial review might be normatively
the life-tenure of judges, a variety of legislative sticks
appealing in the abstract and might be inserted into
are available to punish the Court for politically unpop-
a constitutional scheme by politically detached drafts-
ular decisions. Court-curbing actions, by constitutional
men, for whom constitutional review might serve as
amendment, statute, or impeachment, have been fre-
an attractive enforcement mechanism to constitutional
quently threatened over the course of American his-
precommitments (Ackerman 1991; Elster 2000).1 Sim-
tory, and often that threat has been sufficient to al-
ilarly, current government officials who are fearful of
ter judicial behavior (Epstein and Knight 1998; Nagel
losing power may attempt to build up judicial authority
1965; Rosenberg 1992). Government officials can also
and entrench their allies in the courts in the hopes
limit the power of the Court by simply evading judi-
that judicial review will be used against future gov-
cial edicts, which highlights the vulnerability of a judi-
ernment officials (e.g., Ginsburg 2003; Moravcsik 2000;
ciary that lacks, as Alexander Hamilton promised, both
Ramseyer 1994). Government officials who expect to
the executive sword and the legislative will (Hamilton
retain power, however, are less obvious supporters of
1961; Rosenberg 1991; Vanberg 2001).
constitutional review. Instead of building up judicial
Even in the American context, the maintenance of
authority, they are likely to subvert it, and active ju-
the judicial authority to interpret the Constitution and
dicial review may simply be a short-lived, transitional
actively use the power of constitutional review is an
phenomenon that will be snuffed out once a political
ongoing political project. For “judicial activism,” in the
coalition consolidates its power over the government
sense of the frequent constitutional invalidation of leg-
(Dahl 1957). Although a court with an accumulated
islation and executive action, to be sustained over time,
stockpile of political capital with the general public
the courts must operate in a favorable political envi-
might nonetheless be able to overcome hostile govern-
ronment.2 Judges must find reason to raise objections
ment officials in particular decisions (Caldeira 1986;
to government actions, and elected officials must find
Vanberg 2001), it seems likely that in time elected of-
reason to refrain from sanctioning judges for raising
ficials would be able to bring the judiciary into line.
Does the judiciary sink into passivity at that point?
I consider the conditions under which judicial ac-
Though federal judges are protected by such secu-
tivism by a relatively friendly court may emerge and
rities as lifetime tenure and guaranteed salaries from
be sustained.3 Given the global rise of the power of
political retaliation for their decisions, the judiciary as
constitutional review and the persistent activism of the
a whole is still vulnerable to politics (Ferejohn 1999).
U.S. Supreme Court, it is important to understand thepolitical supports for the exercise of judicial review.
Keith E. Whittington is Professor, Department of Politics,
Corwin Hall, Princeton University, Princeton, NJ 08544 (kewhitt@
2 Although “judicial activism” is an ambiguous term of limited gen-
eral utility, I employ it here in the specific sense of invalidation
I am grateful to the participants in the Center for American
of legislative and executive action (see also Caldeira and McCrone
Political Studies seminar series at Harvard University, The Table,
1982). As such, it connects with popular discourse about the courts
the Constitutional Theory conference at NYU Law School, and the
and is consistent with a prominent dimension of common usage.
Law and Politics workshop at Washington University, and to the
3 James Rogers (2001) has likewise suggested an informational the-
anonymous reviewers for their helpful comments.
ory of judicial review by which legislators might rely on sympathetic
1 Judicial review may also be a useful device for making “credible
courts to exercise the power of judicial review to correct inadvertent
commitments” by current government officials to other powerful ac-
constitutional errors. It is unclear how politically important such a
tors who would otherwise threaten their power (Landes and Posner
judicial function might be in practice (Whittington 2003), but it could
1975; Moustafa 2003; Weingast 1997).
work in complement with the friendly judicial review laid out here.
The existing normative and empirical literature on ju-
develop cheap information on the performance of
dicial independence and constitutional review largely
bureaucracies or the preferences of the electorate
emphasizes how judicial activism emerges when the ju-
(Hansen 1991; McCubbins and Schwartz 1984). At
diciary is relatively unfriendly to the current legislative
the same time, it should be recognized that appar-
majority.4 An emerging literature is concerned with
ent legislative delegations may be better understood
showing how Supreme Court doctrine fits within goals
as the exploitation of available political resources and
and tensions within the broader political regime, how-
legislative weaknesses by other actors, such as execu-
ever (e.g., Gillman 2002; Graber 1993; Pickerill and
tive branch officials, to enhance their own institutional
Clayton 2004; Tushnet Forthcoming). This emerging
position (Whittington and Carpenter 2003). Thus, we
literature has observed that the exercise of judicial
should be sensitive to the interaction between courts
review often does not fit the “countermajoritarian”
exploiting political opportunities and legislative lead-
framework, but efforts to develop explanations for the
emergence of judicial review are still in their initial
The courts exercising a power of judicial review may
stages. Here I suggest how structural characteristics of
be a vehicle for overcoming political barriers that ham-
political systems such as the United States encourage
per a governing coalition. There are two preconditions
cooperation between judges and political leaders to
for this possibility to be reasonable. The first is that
obtain common objectives. In particular, the Court as-
courts often be ideologically friendly to the govern-
sists powerful officials within the current government
ing coalition. Political majorities are unlikely to benefit
in overcoming various structural barriers to realizing
from supporting courts that are ideologically divergent
their ideological objectives through direct political ac-
from them and are unlikely often to be able to work in
tion. After sketching the logic of judicial review as a
tandem with them to achieve common political goals.
solution to the structural obstacles to direct political
There are reasons to believe that this precondition is
action, I consider three such obstacles in American
often met in the American context, with the selection of
politics—–federalism, entrenched interests, and frag-
individual judges (Dahl 1957), the departure of current
mented political coalitions—–and illustrate how signifi-
judges (Spriggs and Wahlbeck 1995), the expansion of
cant episodes of judicial review in the past have been
the judiciary as a whole (Barrow, Zuk, and Gryski
1996; De Figueiredo and Tiller 1996), and the struc-ture of court jurisdiction (Gillman 2002) all facilitatingthe creation of a sympathetic judiciary. This is not to
JUDICIAL REVIEW BY AN ALLIED COURT
say that presidents and parties are never surprised by
The establishment and maintenance of judicial review
their judicial appointments or by judicial decisions, but
is a way of delegating some kinds of political decisions
merely that the Court often shares the constitutional
to a relatively politically insulated institution. This del-
and ideological sensibilities of political leaders.
egation aspect of judicial review drives the entrench-
The second precondition is that judicial review is
ment thesis, as current political majorities attempt to
actually useful to current political majorities. The use-
insulate their policy preferences from future political
fulness to legislators of other judicial powers, such as
majorities by empowering sympathetic judges who will
the power to interpret statutes and enforce the law, is
endure through the electoral transition. This is only
fairly evident. The utility of the power of judicial review
one of the potential uses to which such an institution
to current legislators is less immediately evident, but
may be put, however. Political majorities may effec-
it is easy to see once we note that judicial review may
tively delegate a range of tasks to a judicial agent that
be used to void statutes passed by previous govern-
the courts may be able to perform more effectively or
ing coalitions, thus displacing the current legislative
reliably than the elected officials can acting directly.
baseline. When governing coalitions are unable or un-
It is well recognized that explicit or implicit “del-
willing to displace the legislative baseline themselves,
egation” of political tasks to differently situated in-
then the courts may usefully do this work for them.
stitutions and actors can be valuable in a range of
Those invested in the status quo have less to gain from
political contexts (see generally, Voigt and Salzberger
judicial review (Graber 2000), and so judicial review is
2002). Legislative party leaders can solve collective ac-
likely to be more useful to some political coalitions than
tion problems and protect the value of party labels
others, depending in part on their substantive agenda
(Cox and McCubbins 1993; Kiewiet and McCubbins
and in part on the extent to which they have been able
1991). Legislative committees can develop expertise
to define the status quo. Nonetheless, as is illustrated
and provide the information needed to make good
in the following, it is unrealistic to assume that only
policy (Krehbiel 1991). Central banks and indepen-
political actors currently out of power stand to benefit
dent judiciaries can allow legislators to credibly commit
to policies valued by key constituencies (Landes and
We can expect that there will be additional supports
Posner 1975; Maxfield 1997). Interest groups can
for the active exercise of judicial review by an ide-ologically friendly judiciary to the extent that thereare political barriers that hamper the realization of a
4 Even those who tend to assume that “successful constitutional
governing coalition’s agenda. In essence, allied elected
judicial review” requires the acceptance of it by “other powerful
officials would stand to benefit from an active judi-
political actors” nonetheless sometimes portray judicial review asitself undesired, “as an inevitable cost of getting [something else
ciary if the ability of those elected officials to reach
that] they want from courts” (Shapiro 1999, 210).
their preferred policy position on their own is limited.
The resort to judges by displaced elected officials or
in a given case, they may well be disappointed. When
minority interests is merely a special case of a larger
signing campaign finance reform, President George W.
class of cases in which political actors allied with the
Bush virtually drew a roadmap of the statutory pro-
courts cannot control the legislative baseline. Political
visions that he hoped the Court would strike down,
leaders who are still part of the governing coalition
but a majority of the justices imposed only modest
may nonetheless find their ability to implement their
constraints on the congressional authority to regulate
preferred policy hampered by difficulties other than
political campaigns (Bush 2002, 517; McConnell v. Fed-
simple electoral defeat. In a federal system, for ex-
eral Election Commission 2003). Striking down that
ample, ideological and partisan opponents may con-
statute might have won favor from the president who
trol policymaking jurisdictions that are insulated from
had signed it, but the Court merely behaved in the po-
direct national legislative control. In the context of
litically conventional manner by lending its legitimacy
heterogeneous and cross-pressured political coalitions,
political leaders may be unable to mobilize legislative
At other times, the justices might well act on their
allies behind a given policy that nonetheless is viewed
own constitutional understandings even when those
understandings are not shared by political leaders or
Political leaders in such a situation will have reason
when their expression is not desired. The political logic
to support or, at minimum, tolerate the active exer-
for such instances of unfriendly and unwelcome judi-
cise of judicial review. In the American context, the
cial review will have to be rather different from those
presidency is a particularly useful site for locating such
described here. If the obstruction is relatively minor,
behavior. The Constitution gives the president a pow-
as when the Court struck down Theodore Roosevelt’s
erful role in selecting and speaking to federal judges. As
Employers’ Liability Act as being drafted too broadly
national party leaders, presidents and presidential can-
while indicating that the law’s aims were constitution-
didates are both conscious of the fragmented nature of
ally legitimate, then the Court’s accumulated political
American political parties and sensitive to policy goals
capital might encourage leaders to simply yield to or
that will not be shared by all of the president’s putative
work around the Court’s rules (Employers’ Liability
partisan allies in Congress. We would expect political
Cases 1907; Pickerill 2004). If the obstruction is more
support for judicial review to make itself apparent in
serious, as when the Hughes Court blocked major com-
any of four fields of activity: (1) in the selection of “ac-
ponents of the New Deal or when the early Warren
tivist” judges, (2) in the encouragement of specific judi-
Court extended the constitutional protections of sus-
cial action consistent with the political needs of coali-
pected Communists, then the political reaction might
tion leaders, (3) in the congenial reception of judicial
be more severe and the strength of the Court’s diffuse
action after it has been taken, and (4) in the public ex-
support might be tested. Not all episodes of judicial
pression of generalized support for judicial supremacy
review take the collaborative form described here. The
in the articulation of constitutional commitments.
possibility of friendly judicial review, however, gives
Although it might sometimes be the case that judges
political leaders reason not only to tolerate the Court
and elected officials act in more-or-less explicit concert
when it behaves in politically difficult ways but also to
to shift the politically appropriate decisions into the
actively support the Court and help build a reservoir
judicial arena for resolution, it is also the case that
of public goodwill when it behaves in politically useful
judges might act independently of elected officials but
nonetheless in ways that elected officials find conge-
I consider here three common barriers to success-
nial to their own interests and are willing and able
ful action on ideological agenda items for political
to accommodate. Although Attorney General Richard
coalitions in American politics: federalism, entrenched
Olney and perhaps President Grover Cleveland
interests, and coalitional heterogeneity. It should be
thought the 1894 federal income tax was politically un-
noted that particular instances of judicial review may
wise and socially unjust, they did not necessarily there-
often involve more than one political logic. An instance
fore think judicial intervention was appropriate in the
of judicial review may well involve state action, for
case considered in more detail later (Eggert 1974, 101–
example, even when the structural obstacle of feder-
14). If a majority of the justices and Cleveland-allies in
alism is not the central political dynamic involved in
and around the administration had more serious doubts
the case. In each case, the central logic of the obstacle
about the constitutionality of the tax, however, the
and how the exercise of judicial review may be useful
White House would hardly feel aggrieved. We should
for overcoming it is sketched out. In each instance,
be equally interested in how judges might exploit the
the Court is able to do what national political leaders
political space open to them to render controversial
are either constitutionally incapable of doing or po-
decisions and in how elected officials might anticipate
litically unwilling to do themselves, and in doing so
the utility of future acts of judicial review to their own
the Court runs with rather than against the interests
of powerful political officials. An empirical illustra-
It should be emphasized that the possibility of
tion of this dynamic at work in significant episodes in
friendly judicial review does not mean that the Court
American history is then provided. These cases are
will simply do the bidding of political leaders. Politi-
clearly not sufficient to indicate how much of the
cians do not know with certainty what the justices will
Supreme Court’s exercise of judicial review can be ex-
do if presented with a given piece of legislation. Al-
plained in these terms, but they are sufficient to suggest
though presidents may hope that the Court will act
that this dynamic has been a notable component of
the political support for judicial review in the United
trumped contrary state laws and implying the possibil-
States and has been relevant to substantively impor-
ity of national judicial review of state actions.
tant episodes of activism by the Court, thus expanding
James Madison was particularly moved, as many
our conceptual toolkit for understanding the politics of
were, by the prospect of internecine violence and the
promise of the judiciary as a way of securing unionand preserving the peace (Deudney 1995; Hendrickson2003). In the Federalist, Madison (1961, 245, 246) held
OVERCOMING FEDERALISM
up the Supreme Court “as the tribunal which is ulti-
Historically, the federal context has been an important
mately to decide” the limits of state and federal power.
one, perhaps the most important one, for generating
Every effort would be made to ensure the Court’s im-
support for the power of judicial review from other
partiality and independence in resolving such issues,
national government officials.5 The Supreme Court
but regardless “some such tribunal is clearly essential to
has won the approval of national officials by imposing
prevent an appeal to the sword and a dissolution of the
their shared constitutional agenda on recalcitrant state
compact.” Decades later, Madison continued to affirm
actors who hamper national political goals. Over the
those early views despite the Court’s doctrinal missteps.
course of its history, the states have occupied more of
At least in those cases “not of that extreme character”
the Court’s constitutional attention than has the fed-
the Court was “the authority constitutionally provided
eral government, and the states have been the primary
for deciding controversies concerning the boundaries
target of the power of judicial review. The Supreme
of right and power” (Madison 1910, 9: 342–43). The
Court has struck down state and local policies in well
alternative to such a “peaceful and effectual” system,
over 1,100 cases, but has rejected federal policies in just
he warned, was likely to be “the sword” (Madison 1910,
over 150 cases. Many of the most controversial political
issues that have come before the Court have done so
In this regard, John Marshall very much shared
through cases involving the states. Despite the more
Madison’s beliefs on the special role of the Supreme
recent celebration of the Court’s review of Congress
Court within the constitutional system. In his
in Marbury v. Madison, the Court largely built its
McCulloch decision in 1819, the Chief Justice observed
power of judicial review in the early decades of the
that the controversy over Maryland’s effort to use
U.S. government by acting against the states. Although
its taxing power to discourage the operation of the
the Court made few efforts to impose restrictions on
Bank of the United States within its borders pitted “a
the national government until after the Civil War, it
sovereign state” against the “legislature of the Union”
struck down an average of six state statutes per decade
and involved the “most interesting and vital parts” of
in the early and mid-nineteenth century. In doing so, the
the Constitution affecting the “great operations of the
Court found political advantage in upholding national
government.” The issue, Marshall intoned, must be de-
supremacy, resolving interstate disputes, and securing
cided and must be “decided peacefully.” If that peace-
the constitutional understandings favored by national
ful settlement were to occur, “by this tribunal alone
political officials when those national officials could not
can the decision be made. On the Supreme Court of
the United States has the Constitution of our country
The fragmented American political system provides
devolved this important duty” (McCulloch v. Mary-
ample opportunities for national electoral minorities
land 1819, 400, 401). As the U.S. Attorney General
to nonetheless exercise political power. Particularly
requested in his arguments before the Court, the jus-
notable is the American federal structure, which al-
tices struck down the Maryland law. Marshall (1969,
lows ideological outliers and members of the out-party
212, 208) later elaborated in a pseudonymous defense
to consolidate and exercise governmental power over
of his opinion, for judges alone is “their paramount
limited geographic jurisdictions. The independence of
interest . . . public prosperity.” Indeed, “if we were now
state and local governments from the national gov-
making, instead of a controversy, a constitution, where
ernment is a source of ferment and resistance within
else could this important duty of deciding questions
the constitutional regime that national political offi-
which grow out of the constitution, and the laws of the
cials might seek to establish. It was this very diffi-
union, be safely and wisely placed.” The Court was not
culty that led many advocates of constitutional reform
the first to interpret the Constitution’s relevance to the
in the 1780s to seek a stronger national government
Bank of the United States, but Marshall insisted that it
with a more effective capacity for disciplining subna-
should be the last. Although some Jeffersonians were
tional political actors (Banning 1995, 43–75; Rakove
unhappy with some of the language in Marshall’s opin-
1996, 51–53). Although delegates at the constitutional
ion, it echoed prominent voices among the National
convention were unwilling to give Congress a direct,
Republicans who dominated national politics after the
discretionary veto over state laws, they did draft the
War of 1812 and both former-president James Madison
supremacy clause making explicit that the Constitution
and the sitting administration of James Monroe quicklyendorsed the decision and encouraged general compli-ance (Graber 1998, 256–57; Warren 1926, 1: 507–12).
5 By explicitly laying aside judicial review of state legislation, Dahl
Though often remembered now as a deferential deci-
(1957) made the Court seem far more passive than it has in fact been
sion upholding congressional authority, in the context
(Casper 1976). As discussed here, incorporating federalism into thepolitical story of judicial review helps show how an active Court is
of the time McCulloch was decidedly activist, but the
still consistent with a politically responsive Court.
activism was directed against the states on behalf of the
constitutional commitments of the national coalition
social reformers” who might regulate railroads, im-
pair creditors, or burden out-of-state businesses. This
William Wirt, Monroe’s respected attorney general,
view was echoed across the country by the increasingly
was an active force in building support for the Court
organized and vocal legal profession and often found
during this period. Writing to President Monroe, Wirt
influence in the White House. Even as Populists were
dismissed the “few exasperated portions of our people”
ramping up their criticisms of the Court and the power
who, responding to “local irritations,” favored “nar-
of judicial review, Republican President Benjamin
rowing the sphere of action of that Court and subduing
Harrison suggested a centennial celebration of the
its energies.” The “far greater number . . . wish to see it
Supreme Court. The 1890 event, presided over by for-
in the free and independent exercise of it constitutional
mer President Grover Cleveland and sponsored by the
powers, as the best means of preserving the Constitu-
New York Bar Association, featured Justice Stephen
tion itself.” Indeed, Wirt judged that it “is now seen
Field (1890, 367), who had been selected by his col-
on every hand, that the functions to be performed by
leagues to deliver the message, emphasizing the “im-
the Supreme Court of the United States are among the
perative duty of the court to enforce with a firm hand
most difficult and perilous which are to be performed
every guarantee of the constitution.” A few years later,
under the Constitution” (Kennedy 1850, 2:134). Argu-
the American Bar Association organized a nationwide
ing before the Court itself in 1824, the attorney general
centennial celebration of the appointment of Chief Jus-
called on the Court to “interpose your friendly hand”
tice John Marshall to the Court, which became an oc-
and strike down New York’s steamship monopoly. “It
casion to celebrate the power of the courts to interpret
is the high province of this Court to interpose its be-
and enforce the Constitution, the American innovation
nign and mediatorial influence” to “extirpate the seeds
that threw off “the doctrines and theories engendered
of anarchy” and stave off “civil war.” So important
by the French Revolution—–the supreme and uncon-
was the Court in interposing the national will against
trollable right of the people to govern” (Dillon 1903, 1:
the states that the constitutional framers would have
deserved their “wreath of immortality” if they had
The Court has often used the power of judicial re-
done “nothing else than to establish this guardian tri-
view to bring the states into line with the nationally
bunal, to harmonize the jarring elements of our system”
dominant constitutional vision. In his comprehensive
(Gibbons v. Ogden 1824, 229). The Court acceded to
analysis of state statutes and constitutional provisions
invalidated by the Supreme Court from the Jackso-
Even after the threat of intergovernmental violence
nian era through 1964, John Gates (1987, 260) found
receded, national officials have been no less con-
that the Court was particularly likely to act against
cerned with curbing constitutional dissenters among
“states whose partisan character is different from the
the states. In concert with Republicans and conser-
dominant majority on the Court or from regions which
vative Democrats in Congress and the White House,
evidence ideological incongruence between the state
the Court moved aggressively in the late nineteenth
and national party organizations.” In the late nine-
century, for example, to strike down state “legislative
teenth and early twentieth centuries, judicial review by
barriers [“to the consolidation of the national mar-
a conservative Court was primarily exercised against
ket”] almost as fast they were erected” (Bensel 2000,
“regions where populism [and later progressivism]
324; see also, Kutler 1968). When the national “cor-
had made strong inroads” (Gates 1992, 67). In the
porations uniformly fell back on their constitutional
mid-twentieth century, invalidated state laws emerged
guaranties. . . . [and] sought shelter behind the Consti-
mostly from Republican states and the ideologically
tution of the United States” from the ravages of various
isolated South. As Michael Klarman (1996) and Lucas
locally influential farmers’ movements, the Court, after
Powe (2000) have detailed, the Warren Court primarily
some initial hesitation, stood ready to extend constitu-
targeted those states and interests who were resistant to
tional protection to them (Adams 1875, 413). By the fi-
national cultural and political trends. Political losers at
nal decades of the nineteenth century, “the legislatures
the national level can often pursue their constitutional
of the States . . . [had been made] subject to the superin-
and policy proclivities in various state governments,
tendence of the judiciary” as the Court elaborated the
but throughout its history the Supreme Court, with the
economic liberties it found in the Constitution and the
encouragement of national leaders, has stood ready to
Fourteenth Amendment and talk of the “centralizing
“expand the scope of conflict” by pulling those policies
tendencies in the Supreme Court” was commonplace
back into the national arena for ultimate resolution
(Anonymous 1890, 521; Powers 1890, 389).
Although reformist elements made few inroads in
the national government during the Gilded Age, they
OVERCOMING ENTRENCHED INTERESTS
were able to set policy in a number of states. Conser-vatives called for the courts to intervene to stop the
The American political system is fragmented horizon-
menace. In the preface of his celebrated treatise on the
tally within governments as well as vertically between
limits of the constitutional authority of the states,
layers of government. This fragmentation—–across
the young constitutional law professor Christopher
branches, across legislative chambers, and within leg-
Tiedeman (1886, viii) called for “a full appreciation
islative chambers—–frequently obstructs those seeking
of the power of constitutional limitations to protect
to alter the status quo. Majority parties in the United
private rights against the radical experimentation of
States can rarely exercise the kind of policymaking
power exerted by governing coalitions in unitary,
ing as “the referee” in state elections (Schwartz, 416).
majoritarian political systems. Entrenched interests
Justice Tom Clark had initially planned to write dis-
can often frustrate reform and can benefit from a pow-
sent in the case, emphasizing that nonjudicial remedies
erful status-quo bias of American lawmaking. Coali-
were available to address the malapportioned districts
tion leaders who might prefer to embark on an ambi-
in Tennessee that were immediately at issue. After con-
tious programmatic agenda may only achieve partial
ducting the research for his opinion, however, Clark
success in the legislature. Just as presidents sometimes
had to report to Frankfurter that he had changed his
turn to their unilateral powers to make policy initiatives
mind and would be joining the majority, “I am sorry
in order to circumvent legislative obstructions, so the
to say that I cannot find any practical course that the
courts can be a useful alternative vehicle for reform
people could take in bringing this about except through
even for those who are part of the majority coalition.
the Federal courts” (Schwartz, 423). Solicitor General
Clearly this happens in the statutory realm (Frymer
Archibald Cox had emphasized the same point in his
2003; Melnick 1994), but it can happen in the constitu-
oral arguments as a friend of the Court, “Either there
tional realm as well. In what Michael Klarman (1997)
is a remedy in the Federal court or there is no remedy
characterizes as “majoritarian judicial review,” the judi-
at all” (Special to The New York Times 1961, 25), and
ciary can assist members of the political majority in dis-
it figured prominently in the formal opinions of the
lodging entrenched political actors and interests. The
justices (Baker v. Carr 1962, 248, 258–59).
same gridlock that hampers positive action by elected
The Court’s willingness to extend constitutional
officials, however, also constrains their responsiveness
principles to cover legislative apportionment was wel-
to judicial decisions, facilitating judicial action that can
comed by liberals, who had long favored reapportion-
count on the backing of well-placed elected officials.
ment as a means for reaching other programmatic goals
The famed legislative apportionment decision of
but they had been stymied in the political process.
1962 is an example of the Court cutting through the
The New Deal had pulled urban voters firmly into
“political thicket” (Colegrove v. Green 1946, 556).
the Democratic coalition, and the malapportionment
Chief Justice Earl Warren (1977, 306) later regarded
of the era overwhelmingly favored more conserva-
Baker v. Carr as “the most important case of my tenure
tive rural voters over more liberal urban voters. After
on the Court.” As governor of California, Warren (310)
Roosevelt’s initial landslide victory, the Nation crowed,
had contributed to the preservation of malapportioned
“For seventy-five years the Republicans have domi-
and gerrymandered legislative districts, which he later
nated the Northern and Eastern States through rotten-
admitted “was frankly a matter of political expedi-
borough provisions in the State constitutions. . . . [but
ency.” “But I saw the situation in a different light
now] the day of retribution has come” (Welsh 1932,
on the Court. There, you have a different responsibil-
523). But the day had not yet come, and a decade later
ity.” From that perspective, he came to believe that he
it could only complain, “[T]he present gerrymandering
“was just wrong as Governor” (Schwartz, 411). The
of state districts amounts to supporters of the New
Court’s willingness to intervene in the field was an
Deal being denied equal voice with its opponents”
abrupt departure from the traditional understanding of
apportionment being a legislative and deeply political
Both the constitutional principle and the political
prerogative, but it was a departure that was being urged
consequences of judicial intervention were in line with
on the Court by programmatic liberals in and around
the liberal regime. In the last years of the Eisenhower
the White House. Often portrayed as an instance of the
administration, Anthony Lewis (1958, 1059) of The
Court simply acting on behalf of popular majorities,
New York Times had prominently pointed to the fed-
legislative reapportionment was the specific project of
eral courts as the only institution politically capable
liberal Democrats who had long chaffed at the legisla-
of correcting “this growing evil of inequitably appor-
tive obstacle posed by entrenched conservatives.
tioned legislative districts,” given the “virtually insur-
Others on the Court shared Warren’s sense of the
mountable, built-in obstacles to legislative action,” and
momentous significance of the case, but for quite differ-
he exhorted the judges to take the lead. “A vacuum
ent reasons. A bitter dissenter in the case, Frankfurter
exists in our political system; the federal courts have
thought the decision was “bound to stimulate litigation
the power and the duty to fill this vacuum.” Taking
by doctrinaire ‘liberals’ and the politically ambitious”
a cue from the Supreme Court’s boldness in Brown,
that could only damage the Court in the long run
federal district judge Frank McLaughlin, a Truman ap-
(Schwartz 1983, 413). His ally John Marshall Harlan
pointee and former New Deal congressman, declared
agreed and appealed to the swing justices not to open
that legislative inaction on reapportionment in Hawaii
the door to such cases in which partisan politics and in-
had gone on for too long; “The time has come, and
terest were so much on the surface. “Today,” he noted,
the Supreme Court has marked the way, when se-
“state reapportionment is being espoused by a Demo-
rious consideration should be given to a reversal of
cratic administration; the next time it may be supported
the traditional reluctance of judicial intervention in
(or opposed) by a Republican administration. Can it be
legislative reapportionment. The whole thrust of to-
that it will be only the cynics who may say that the out-
day’s legal climate is to end unconstitutional discrimi-
come of a particular case was influenced by the politi-
nation. It is ludicrous to preclude judicial relief when a
cal backgrounds or ideologies of the then members of
main-spring of representative government is impaired”
the Court . . . ?” (Schwartz, 414). But Congress, Warren
(Dyer v. Abe 1956, 226). While still a senator preparing
countered, had already pushed the justices into serv-
for his presidential run, John F. Kennedy (1958, 37,
38) had published a magazine article calling legislative
ing reform when other branches of government fail
apportionment “deliberately rigged” and “shamefully
to act” (Reynolds v. Sims 1964, 624). For sympathetic
ignored”; the only result of “this basic political discrim-
political leaders, this view might have been current,
ination,” he argued, was the “frustration of progress.”
but it was hardly politically mistaken. From the White
By then, the Nation could see the possibility of a
House down, liberals turned to the Court in order to
“civil-liberties battle” over legislative apportionment
displace entrenched conservative legislators who could
being fought in the courts, and liberal interest groups
not be defeated by other means, and they contributed
such as the AFL-CIO, American Civil Liberties Union,
to the political and intellectual climate that would lend
and Americans for Democratic Action were early par-
support and legitimacy to the Court taking that un-
ticipants in apportionment litigation (Cortner 1970;
Fleming 1959, 26). Even as friends of the Kennedyadministration such as James MacGregor Burns
OVERCOMING FRACTIOUS COALITIONS
(1963, 1) bemoaned the “old cycle of deadlock anddrift” that killed “most of Mr. Kennedy’s bold pro-
American political parties are often fractious coali-
posals,” the Nation pointed to malapportionment as
tions, and party unity may come at the price of sub-
the linchpin of the conservative coalition’s legislative
stantial policy compromise. For the leaders of factions
power and encouraged the courts to pull it out (Lind-
within the governing party, judicial review may offer
say 1962, 208). Doing so was expected not only to
the means for continuing the intracoalitional disagree-
aid Democrats over Republicans but also pointedly
ment and potentially for undoing the compromises that
to strengthen the hand of liberal Democrats at the
had to be made in the political and legislative arenas.
The backstop of friendly judicial review may smooth
The Kennedy electoral campaign concentrated on
the legislative relations of the members of fractious po-
the urban vote, and once in the White House, the ad-
litical coalitions while providing some measure of ad-
ministration for the first time encouraged the Court
ditional security for the central commitments of party
to intervene in legislative apportionment in the case
leaders and presidents. Judicial invalidation of even
of Baker v. Carr and voiced its support after that fa-
recent federal law will not necessarily be unwelcome
vorable decision was announced. The Kennedy’s had
forced the reluctant Archibald Cox to argue the case
One of the more controversial exercises of judicial
before the Court. Upon release of the Court’s de-
review in the nineteenth century—–the invalidation of
cision, Attorney General Robert Kennedy immedi-
the federal income tax in 1895—–fits this description.
ately hailed it as a “landmark in the development of
When Republicans controlled the federal government
representative government” and observed that “the
during the Civil War, they adopted many of the eco-
democratic process has been distorted,” requiring an
nomic policies of their Whig predecessors, including the
“effective judicial remedy” (Special to The New York
protective tariff. The protective tariff soon became a
Times 1962, 1). Publicly, the president endorsed the
key plank in the Republican platform, and the Republi-
Court’s decision and reminded the American peo-
cans kept duties on imported goods high whenever they
ple that the administration had in fact encouraged it.
held power until their conversion to free trade after the
“Quite obviously,” John Kennedy (1963, 274) asserted,
Second World War. The Democrats had been equally
“the right to fair representation and to have each vote
committed to free trade since the Jackson presidency,
counted equally is, it seems to me, basic to the suc-
and when Grover Cleveland regained the White House
cessful operation of a democracy.” It had been “impos-
for the Democrats, he railed against the protective tariff
sible for the people involved to secure adequate re-
as injurious to consumers and an example of govern-
lief through the normal political processes.” Although
ment corruption. When the federal government finally
it was the “responsibility of the political groups to
fell under unified Democratic control after the 1892
respond to the need,” when no relief was forthcom-
elections, Cleveland made tariff reform the centerpiece
ing “then of course it seemed to the Administration
that the judicial branch must meet a responsibility.”
In the midst of economic depression and grow-
Privately, he elaborated to former Secretary of State
ing budget deficits, lowering tariffs was a tough sell.
Dean Acheson, “the legislatures would never reform
Nonetheless, Cleveland staked the future of the party
themselves and that he did not see how we were going
on it and was personally active in designing the re-
to make any progress unless the Court intervened”
form and pushing it through Congress. House Ways and
(Schwartz 1983, 425). Administration officials subse-
Means Committee Chairman William Wilson, working
quently claimed credit for winning the result in Baker,
closely with the president, immediately began nego-
and the Kennedy Justice Department remained ac-
tiating tariff reform at the opening of the Fifty-third
tive in subsequent reapportionment litigation (Sowell
Congress. Despite presidential support and party ide-
1992, 383–84). Two years later, in another reapportion-
ology, however, many newly elected Democratic con-
ment case, Harlan complained, “these decisions give
gressmen from manufacturing districts were loath to
support to a current mistaken view of the Constitution
reduce import duties, while still others worried that sig-
and the constitutional function of this Court. This view,
nificant tariff reform would not be consistent with a bal-
in a nutshell, is that every major social ill in this coun-
anced budget without the addition of some other tax.
try can find its cure in some constitutional ‘principle,’
To calm these latter concerns, Cleveland had endorsed
and that this Court should ‘take the lead’ in promot-
the inclusion of a temporary “small tax upon incomes
derived from certain corporate investments” that could
and was expected to fall primarily on the residents of
be lifted as soon as the fiscal climate improved, but the
only four states (New York, New Jersey, Pennsylvania,
administration had earlier rejected efforts to include a
and Massachusetts). Two of these states (New York
personal income tax in the tariff bill (Richardson 1908,
and New Jersey) happened to also be important swing
9:460; Summers 1953, 152–86). This was not enough to
states in Gilded Age presidential elections, and New
win a majority, and the Republicans and Populists com-
York in particular was essential to Democratic Elec-
bined to deny the Democrats a functioning quorum.
toral College calculations. It was the centrality of New
The Populists and Populist-leaning Democrats in the
York that led to reformist New York Governor Grover
House were pivotal to the passage of any significant
Cleveland’s own Democratic presidential nomination
tariff reform, but the price of their cooperation was
in 1884, 1888, and 1892 and the integration of the Mug-
the inclusion of their income tax measure in the tariff
wumps (a breakaway group of Republican profession-
bill. Over Wilson’s objections, the Democratic caucus
als and businessmen centered in New York) into the
took the deal as the only way to salvage the presi-
Cleveland coalition (James 2000, 42–56). Democratic
dent’s program. Despite delaying motions of New York
New York Senator David Hill warned his populist
Democrats, who declared that “we stand here with the
colleagues, “The times are changing; the courts are
patron saints of Democracy, the apostles who have laid
changing, and I believe that this tax will be declared
down the law of the party for 100 years . . . [and] de-
unconstitutional. At least I hope so” (Congressional
clared internal taxation abominable,” the majority of
Record 1894, 6637). The business community in New
the Democrats in the House joined with the Populists
York was apoplectic over the income tax. Although
to bundle the two measures and pass the whole (The
some in the New York City press labeled it a Cleveland
New York Times 1894, 6). The situation was even worse
tax, his allies defended the president as an opponent
in the Senate, where even more compromises had to
of the tax and a victim of the populists (The New York
be made on duty rates to keep a majority together.
President Cleveland was hardly satisfied with the
Immediately upon its passage, a group of New York
results of the legislative negotiations. Despite his own
businessmen sponsored a collusive suit between a com-
misgivings, he was convinced that the bill “is so interwo-
pany and a stockholder to put the constitutionality of
ven with Democratic pledges and Democratic success
the income tax before the Court. The administration
that our abandonment of the cause of the principles
dutifully defended the constitutionality of the tax, call-
upon which it rests means party perfidy and party dis-
ing on the Court to respect Federalist-era precedent
honor” (Cleveland 1933, 355). Although the amended
and the appropriate sphere of legislative discretion
bill fell well short of what they had wanted, Cleveland
over the proper exercise of the taxing power (Pollack
(357) rationalized to Wilson, “You know how much I
v. Farmers’ Loan and Trust 1895a, 502, 513). But the
deprecated the incorporation in the proposed bill of the
Court first struck down the tax on income from real
income tax feature. In matters of this kind, however,
estate and state and local bonds, and a month later
which do not violate a fixed and recognized Democratic
a narrow majority struck down the rest. Cleveland-
doctrine, we are willing to defer to the judgment of a
appointed Chief Justice Melville Fuller wrote both
majority of our Democratic brethren. I think there is
opinions striking down the provisions as violating basic
general agreement that this is party duty,” a duty that
constitutional efforts “to prevent an attack upon accu-
was all the more pressing when it was recognized that
mulated property by mere force of numbers” (Pollack
“a quick and certain return of prosperity waits upon a
v. Farmers’ Loan and Trust 1895a, 583). Among the
wise adjustment” to the tariff. Even though the presi-
dissenters, Republican John Marshall Harlan was of-
dent had strained to ensure the passage of the bill into
fended not least by the Court’s willingness to undo
law, he could not bring himself to sign such inadequate
the legislative compromise while leaving the tariff re-
legislation. The Tariff Act of 1894 became law without
duction still standing; “every one knows, the act never
the president’s signature just a few months before the
would have passed” without the income tax provisions
midterm election, but it was not enough to prevent
(Pollack v. Farmers’ Loan and Trust 1895b, 684).
the Democrats from being routed in both chambers
The decision set off great rejoicing in some quar-
of Congress. Months before the Republican majorities
ters, as The New York Times (1895b, 4) crowed that,
assembled in the Fifty-fourth Congress, however, the
although “enacted by a Democratic Congress,” the tax
Supreme Court struck down the income tax provisions
was “not Democratic in theory or policy, and . . . the
of the Tariff Act. When the Republicans regained the
method of constitutional interpretation that has guided
White House two years later, tariff rates were again
the Supreme Court in destroying them is one of the
fundamental doctrines of the Democratic Party. The
The income tax was harshly denounced as a purely
rendering of this opinion is an event of the utmost
sectional and class measure, and indeed it was. Ne-
importance to that party.” The decision also set off
braska Representative William Jennings Bryan, the
enormous criticism of the Court, led by Bryan who
emerging leader of the populist wing of the Democratic
routed the Cleveland forces to capture the Democratic
Party, was a primary sponsor of the amendments, and
nomination the next year, but the president refrained
its support came almost exclusively from legislators
from adding to the din and his loyalists in a breakaway
from the South and West. The 2% tax on all per-
party convention denounced Bryan for his attacks on
sonal income over $4,000 was a significant symbolic
judiciary (Stephenson 1999, 107––28). When income-
shift from the traditional sources of federal revenue
tax dissenter Howell Jackson died just months after
the decision, Cleveland replaced him with conservative
D6). The House of Representatives had already passed
New York corporate attorney Rufus Peckham, whose
the reform bill with the administration’s preferred in-
nomination the president first cleared through Sena-
decency provision calling for the Justice Department
tor Hill. Of course, if Bryan had won the elections of
to study the issue, and Speaker Newt Gingrich had de-
1896 the conservative-leaning Court might well have
nounced the Exon proposal as unconstitutional. After
faced some difficulties. As it was, however, both con-
Senate passage, however, the Clinton administration
servative Democrats and the Republicans welcomed
relented, concluding, according to a senior administra-
the Court’s intervention and supported its increasing
tion official, “No way are you going to get yourself in a
willingness to exercise the power of judicial review.
position where the president isn’t willing to go as far as
As the Court prepared for reargument on the income
a Democratic senator in restricting child pornography
tax, the Cleveland-allied New York Times (1895a, 4)
on the Internet” in an election year (Weisberg 1996). It
expressed the sentiment of the ultimate victors when
was initially hoped that the Senate’s amendment would
it editorialized that striking down the tax should be
be excised in the privacy of the conference committee,
understood less as “magnifying the function of the
but in a surprise victory for social conservatives the
Supreme Court” than as “resuming a function that had
conference narrowly voted to adopt the Senate’s lan-
been to some extent abandoned, and with unfortunate,
guage (Bryant and Plotnikoff 1996). At the same time,
however, the conference did entrust enforcement to the
A century later, President Bill Clinton was simi-
Department of Justice (rather than the Federal Com-
larly forced to swallow a disagreeable amendment in
munications Commission) and provide for expedited
order to get a significant legislative package through
judicial review of its indecency provisions. The presi-
Congress, and the subsequent exercise of judicial re-
dent announced that he would not allow the inclusion
view can likewise be understood to have been friendly
of the CDA to hold up telecommunications reform, and
to the sitting administration. In February 1996, the
with political attention now focused on it the Justice
president finally signed the Telecommunications Act,
Department pledged to defend the measure “so long
the most important telecommunications reform since
as we can assert a reasonable defense consistent with
the New Deal and an administration priority from the
Supreme Court rulings in this area” (Schwartz 1996,
beginning of Clinton’s term of office. Clinton (1997,
186) marked the occasion by traveling to the Library
The courts agreed with what the Justice Depart-
of Congress on Capitol Hill to sign a law that he
ment told Congress rather than with what it said
promised would unleash the “free flow of information.”
in its legal briefs. After a special three-judge panel
He praised its potential “to build our economy . . . , to
struck down the CDA as unconstitutional in the sum-
bring educational technology into every classroom, and
mer of 1996, Clinton (1997, 906) affirmed that “I re-
to help families exercise control over how media influ-
main convinced, as I was when I signed the bill, that
ences their children” (Clinton, 127). The last was in
our Constitution allows us to help parents by enforc-
recognition of the legislation’s requirement of the “V-
ing this act,” but said that the Justice Department
chip,” the administration’s favored technological fix to
would be responsible for a decision as to whether
sex and violence on television. The president did not
to appeal and trumpeted the administration’s support
mention another high-profile element of the law, the
for filtering software to block “objectionable mate-
Communications Decency Act, which the Justice De-
rials.” The administration quickly concluded that it
partment would soon be defending in court.
would be politically costly not to appeal, however,
The Communications Decency Act (CDA) was a
and the Supreme Court struck down the provision in
last-minute amendment on the floor of the Senate to
Reno v. American Civil Liberties Union (1997), sever-
the telecommunications reform bill. Democratic Sen-
ing it from the Telecommunications Act. The White
ator James Exon of Nebraska had originally intro-
House issued a statement reemphasizing its commit-
duced the measure in February 1995 to extend “the
ment to protecting children from inappropriate mate-
standards of decency which have protected telephone
rial and announcing plans for a conference to study
users to new telecommunication devices” (Congres-
blocking technology similar to the V-chip (Clinton
sional Record 1995, 3203). As the Senate neared fi-
1998, 829). Exon lamented the Court’s decision from
nal deliberations on the telecommunications bill, Exon
his retirement in Nebraska, while his local paper hailed
and Republican Senator Daniel Coats offered a re-
his “good try” (Knapp 1997; Omaha World Herald
vised version of the CDA as an amendment. With lurid
photos downloaded off the Internet available on hisdesk for his colleagues to view, Exon quickly won alopsided vote to include the CDA in the reform bill. OVERCOMING CROSS-PRESSURED
The Department of Justice and the Clinton adminis-
POLITICAL COALITIONS
tration had repeatedly voiced their opposition to themeasure, judging it both unworkable and unconsti-
There are some issues that politicians cannot easily
tutional, but as Senator Orrin Hatch complained of
handle. For individual legislators, their constituents
the Senate vote, “It’s kind of a game, to see who can
may be sharply divided on a given issue or over-
be the most against pornography and obscenity . . . It’s
whelmingly hostile to a policy that the legislator would
a political exercise” and the administration was un-
nonetheless like to see adopted. Party leaders, includ-
able to prevent its addition to the bill (Andrews 1995,
ing presidents and legislative leaders, must similarly
sometimes manage deeply divided or cross-pressured
role of Southern Democrats in the New Deal legislative
coalitions. When faced with such issues, elected officials
and electoral coalition stymied progress on the issue.
may actively seek to turn over controversial political
By 1940, the Roosevelt administration had recognized
questions to the courts so as to circumvent a paralyzed
the importance of the Black vote in the North, but
legislature and avoid the political fallout that would
rebuffed the NAACP so as not to risk higher prior-
come with taking direct action themselves. As Mark
ity agenda items (McMahon 2003; White 1948, 169–
Graber (1993) has detailed in cases such as slavery and
70). Hubert Humphrey rose to national prominence
abortion, elected officials may prefer judicial resolution
in the 1940s stumping for a “real, liberal Democratic
of disruptive political issues to direct legislative action,
Party” that would take action on Black civil rights and
especially when the courts are believed to be sympa-
excommunicate Southern conservatives (Delton 2002,
thetic to the politician’s own substantive preferences
120). Meanwhile, Truman was famously advised that
but even when the attitude of the courts is uncertain or
the “Northern negro voter today holds the balance of
unfavorable (see also, Lovell 2003). Even when politi-
power in Presidential elections” and that it was “incon-
cians do not invite judicial intervention, strategically
ceivable” that the South would revolt no matter how
minded courts will take into account not only the policy
far to the left the administration leaned (Rowe 1995,
preferences of well-positioned policymakers but also
36, 30). In the election year of 1948, Truman (1964,
the willingness of those potential policymakers to act
122) fruitlessly explained to Congress that the duty to
if doing so means that they must assume responsibil-
secure civil rights “is shared by all three branches of
ity for policy outcomes. For cross-pressured politicians
the Government” and took some unilateral actions of
and coalition leaders, shifting blame for controversial
his own. This proved to be enough to provoke Strom
decisions to the Court and obscuring their own re-
Thurmond’s “Dixiecrat” revolt, which eventually stole
lationship to those decisions may preserve electoral
39 electoral votes from Truman in the general election.
support and coalition unity without threatening active
Though Truman won a surprising victory in 1948, the
judicial review (Arnold 1990; Fiorina 1986; Weaver
Dixiecrat scare hung over the Democratic Party for
1986). The conditions for the exercise of judicial re-
view may be relatively favorable when judicial inval-
In its second term, the Truman administration it-
idations of legislative policy can be managed to the
self took a different tack on civil rights. Though
electoral benefit of most legislators. In the cases con-
“black activists and their white liberal allies from the
sidered previously, fractious coalitions produced legis-
programmatic wing of the Democratic party . . . were
lation that presidents and party leaders deplored but
determined to press their cause even at the risk
were unwilling to block. Divisions within the governing
of disrupting the unity of the national party,” oth-
coalition can also prevent legislative action that polit-
ers were centrally concerned with coalition main-
ical leaders want taken, as illustrated in the following
tenance (Sundquist 1983, 354). “Programmatic” ad-
vances would have to be accomplished through safer
This complicated dynamic can be illustrated through
means. In public Truman largely dropped the issue, but
the consideration of Democratic strategies for dealing
his aides shifted resources into the Justice Department
with the Court and racial civil rights in the 1950s. For
and sketched out a litigation strategy that would “offset
Democrats, civil rights fell along the central fault line
the legislative defeats” (Berman 1970, 166). In its last
of their existing legislative and electoral coalition, di-
years in office the administration filed briefs urging the
viding White Southern Democrats from more liberal
Court to overthrow Jim Crow, and when stumping in
Northern Democrats. Both Black voters in the North
Harlem for the 1952 Democratic ticket Truman (1968,
and White voters in the South were increasingly re-
798) highlighted the actions that the administration had
garded as potentially pivotal in determining the control
of the White House, but they put conflicting demands
Truman’s Democratic successors were determined
on presidential candidates. The Court as a policymaker
to downplay the civil rights issue. In 1952, Adlai
was a potential strategic resource for overcoming a
Stevenson emerged as “the man most likely to
fragmented coalition and achieving policy outcomes
hold together the liberal-labor-Southern coalition that
greatly desired by some constituents. At the same time,
Franklin D. Roosevelt built,” though Black Democratic
the independence of the judiciary from explicit political
convention delegates walked off the floor when Al-
control allowed politicians to distance themselves from
abama Senator John Sparkman was selected as the
judicial actions greatly disliked by other constituents,
vice-presidential candidate (Reston 1952, 1). After
allowing politicians to roll with the judicial punches
Brown raised the stakes on civil rights, Stevenson re-
rather than having to retaliate against them.
mained insistent in 1956 that “where principle and
For liberals during the Roosevelt and Truman ad-
unity conflicted in this matter, he was bound to stand
ministrations, racial civil rights suffered from a grid-
by unity.” Though he pledged that he would “act in
lock problem arising from within the Democrats’ own
the knowledge that law and order is the Executive’s
electoral coalition. Decades of political neglect and
responsibility” and that it was “the sworn responsibility
the Great Depression tore the Black vote loose from
of the President of the nation to carry out the law of
the party of Lincoln. As Blacks continued to migrate
the land” as declared by the Court, he worked to keep
north and became an important part of the voting
the party from explicitly endorsing the Brown decision
constituency of Northern Democrats, Black civil rights
(Martin 1977, 302, 317). Stevenson’s advisors initially
became an increasingly salient issue for Northern liber-
assured him that the Court in Brown had ended civil
als and national party leaders. Nonetheless, the pivotal
rights as a political issue, but later changed their minds
and raised the specter of another Dixiecrat revolt but
review as such. Russell Long emphasized, “Although
of “considerably greater magnitude” (Gillon 1987, 97;
I completely disagree with the decision, my oath of
Martin 1979, 125). Pulled by both sides, Stevenson
office requires me to accept it as law. Every citizen is
wailed in frustration during the 1956 primaries, “I had
likewise bound by his oath of allegiance to his coun-
hoped the action of the Court and the notable record
try” (Albright 1954, 2). Liberal Tennessee senator and
of compliance . . . would remove this issue from the po-
presidential hopeful Estes Kefauver, under pressure
litical arena” and complained that the Eisenhower ad-
from segregationists, explained to home state voters
ministration was not doing enough to make the issue
that his hands were tied by the Court, “There is not
one thing that a member of the United States Senate
In 1960, the Kennedy brothers likewise feared that
can do about that decision—–and anyone who tells you
becoming entangled in the civil rights issues would cost
that he’s going to do something about it is just trying
the party more votes than it would gain (Frymer 1999).
to mislead you for votes” (Special to The New York
Though approving the inclusion of a civil rights plank
Times 1954, 60). Richard Russell, also a Democratic
in the party platform, the Kennedy administration was
presidential aspirant, went further and tried, in the
determined not to “endorse a frontal assault against
Post’s estimation, “to pin responsibility for the decision
the segregation system” and when action was necessary
directly on the Republican administration,” complain-
“kept the president in the background, and stressed the
ing that “the Supreme Court is becoming the political
need to uphold the law, rather than the moral right of
arm of the executive branch.” Eisenhower’s attorney
blacks to use desegregated facilities” (Matusow 1984,
general, Russell surmised, was intervening with “pres-
64, 74). The Justice Department advised citizens that
sure groups” while the Court “supinely transposes the
civil rights were “individual,” “private,” and “personal”
words of the briefs filed by the Attorney General and
and to be pursued in court with their own attorneys
adopts the philosophy of the brief as its decision”
(Marshall 1964, 50). Only when national and interna-
tional public opinion turned decisively against South-ern violence in 1963 did the president embrace civil
CONCLUSION
rights as a “moral issue . . . as clear as the AmericanConstitution” (Kennedy 1964, 469).
A politically sustainable judicial activism can be under-
Although national party leaders ducked the issue,
stood as a vehicle of regime enforcement. The idea of
other Democratic politicians were free to play to their
judicial review as regime enforcement has increasingly
own local constituencies. In the aftermath of the Brown
been developed in the literature in the context of “judi-
decision, Hubert Humphrey of Minnesota rushed to
cial entrenchment,” or the continued enforcement by
praise the Court for taking “another step in the for-
an electorally insulated judiciary of the constitutional
ward march of democracy,” while Dennis Chavez of
and policy commitments of a dominant political coali-
New Mexico proclaimed that it “meets with my entire
tion against new political majorities after the original
thinking and approval” (Albright 1954, 2). Northern
coalition has suffered electoral defeat (Gillman 2002;
congressional Democrats feared that in the wake of
Hirschl 2004). From a narrow Dahlian perspective, the
Brown “Republicans will move in on their once vast
active exercise of judicial review is evidence of an un-
minority following” and found stronger appeals on the
ruly Court hostile to the interests of the lawmakers cur-
civil rights issue electorally essential (Albright 1956,
rently in power. The “obstruction” of electoral defeat
E1). While party activists such as Joseph Rauh of
provides the most obvious context in which a political
Americans for Democratic Action proclaimed that the
coalition might find its ability to exert its will frustrated
“Supreme Court has pointed the way for the future,”
and therefore might turn to the courts as an alternative
the 1956 convention under Stevenson’s watchful eye
policymaking venue. At least in the American con-
only recognized in the very last plank of its platform
text, however, there are other obstructions to policy
that “the Supreme Court of the United States as one
hegemony as well. Political leaders may find their abil-
of the three Constitutional and coordinate branches of
ity to define the policy status quo limited well before
the Federal Government [was] superior to and separate
electoral defeat. In a fractured political environment
from any political party” and its decisions were “part
such as that of the United States, national political
of the law of the land” (Martin 1979, 150).
leaders will have incentives to support the exercise
The reaction of Southern politicians was, of course,
of judicial review by an ideologically sympathetic ju-
intense, including most famously the “Southern Man-
diciary even while those political leaders are still in
ifesto” signed by most federal legislators from the
power. The actions of a “collaborative” Court might
Southern states (but the Speaker of the House and
converge with the interests of current political leaders
the Senate Majority Leader, both of Texas, were not
(Tushnet Forthcoming). Most notably, the autonomy of
asked to sign). Even so, the Manifesto limited itself to
state governments in a federal system, entrenched in-
encouraging only “all lawful means to bring about a re-
terests, and fragmented political coalitions may all lead
versal of the decision,” a restraint that both Stevenson
political leaders to invite and/or benefit from judicial
and President Dwight Eisenhower praised. What the
activism that can overcome such political obstructions
Washington Post called Southern “moderates,” also
and enforce central ideological commitments against
notably national Democratic leaders heavily cross-
pressured by their local constituencies, carefully shifted
Judicial review disrupts the policy status quo. The
the blame for the federal government’s new stance on
standard assumption within normative constitutional
civil rights while refraining from subverting judicial
theory and a great deal of empirical literature that the
“countermajoritarian” exercise of judicial review will
Whereas a Supreme Court that flies in the face
be viewed with disfavor by current political leaders
of powerful supermajorities may well find its wings
assumes that the status quo being disrupted reflects
clipped, a Court that acts in implicit concert with sym-
the policy preferences of those leaders and thus that
pathetic party or factional leaders may be protected
the Court is acting in a fashion that is hostile to cur-
from legislative sanction by the very veto points that
rent majorities. There are instances of judicial review in
make judicial review useful to a political coalition in
which this assumption is clearly justified. The Supreme
the first place (Whittington 2003). Indeed, such a Court
Court’s repudiation of the early New Deal is a clas-
provides incentives to elected officials to seek to build
sic example and the very exemplar of Dahl’s (1957)
the kind of diffuse support for the Court in the general
obstructionist, “lagging” Court.
public that public opinion scholars have emphasized as
There are other episodes of judicial review that do
important to judicial legitimacy. It has been suggested
not fit this model and do not occur in such a con-
that the Court’s authority to interpret the Constitu-
text. Fragmented institutions limit the hegemony of
tion may be particularly vulnerable when faced with
governing coalitions, and as a result limit the ability
what Stephen Skowronek (1993) has called a “recon-
of political leaders to insure by political means that
structive president,” a president with expansive politi-
the status quo reflects their preferences. Some gov-
cal authority dealing with an electorally lagging Court
ernmental units may be relatively autonomous and
(Whittington 2001b). If so, then the Court’s authority
capable of setting policy that conflicts with the prefer-
may be at its peak when it is operating in partnership
ences of such coalitions. A political system with many
with Skowronek’s “affiliated” leader, who must man-
veto points may insulate policies from electoral change,
age an established but fractious political coalition while
hampering the ability of current political leaders to
advancing the contested ideological commitments of
bring policy into line. Governing coalitions suffer from
the political regime. An enterprising Supreme Court
a lack of ideological purity, and as a result limit the
may be able to “interpose its friendly hand” to assist
ability of coalition leaders to act politically on all the
the political task of such an affiliated leader while ex-
policy preferences held by important elements of its
ercising its independent power of judicial review.
membership. Some pivotal legislators or voting blocsmay have to be accommodated even at the price ofpolicy priorities or party principles. Momentary elec-toral pressures may overwhelm longer term ideological
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