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Apsanet.orgArticle: ““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
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“Interpose Your Friendly Hand”: Political Supports for the Exercise
of Judicial Review by the United States Supreme Court
KEITH E. WHITTINGTON Princeton University
Theexerciseofconstitutionalreviewbyanindependentandactivejudiciaryiscommonlyregarded as against the interest of current government officials, who presumably prefer to exercise powerwithout interference. In this article, I advance an “overcoming obstructions” account of why judicial 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.
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 REFERENCES
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- Ber- lin InvItatIon SyMpoSIuM tHéa ESCRS CONGRESS 13 - 17 september, 2008 - BERLIN New treNds iN ocular aNtibiotherapy Sunday September 14th, 2008 7.00 p.m - 8.30 p.m Hamburger Bahnhof Museum the lecture will be followed by a flyiNg buffet Hamburger Bahnhof MuseumInvalidenstraße 50- 51 10557 Berlin - GermanyTel (+49 30) 397834-11 on the occasio