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May 31, 2006



Good website!

Howard Gillman

It's worth noting that Keith Whittington's next book, entitled Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (under contract at Princeton), draws on Skowronek's concept of political time (see Keith's website at http://www.princeton.edu/~kewhitt/abstracts.html, scroll to bottom). More to the point with respect to Tracy's comment -- whether there is such a "lag" effect would be the sort of empirical project one could take on if there was an interest in working within this framework.

Tracy Lightcap

For all this three cheers, but I would add a bit to the perspective. Recently, I've been reading a good bit of Skorownek's work on the presidency. Is it possible that SCOTUS decisions track what he calls "political time", albeit at a lag? True, presidents are routinely outlasted - today more then ever - by their appointees and, as has been pointed out above, the Nine can cause considerable trouble for regimes as they get out of sync. But perhaps the changes we see in the ideological tilt of justices over time are a function of the capability of regimes in political time; i.e. as regimes begin to fall into crapulence justices begin to find some ideological independence more readily. This would fit nicely with Howard's emphasis: the increasing discontinuities within regimes as political time matures could have a lagged effect on Court decisions, reflecting - perhaps - increasing discontinuities in the ideological coalitions on the Court itself.

Well, there's a research project well beyond my resources. Now I guess I'll just go back to reading about the Yezhovchina.

Howard Gillman

Mark is right that we may not make a lot of headway if we assume that courts always serve this aggregate entity known as a "dominant governing coalition." The point wasn't so much to advocate one particular hypothesis. It was to encourage empirical scholars to think about the advantages of situating courts in this sort of context -- or, to put it another way, to incorporate variables/concepts associated with partisan coalitions into their explanations of why courts do what they do. Thinking about the relationship between courts and the wings of particular parties -- ideological wings, presidential wings, congressional wings, regional wings -- would be as good a way as any to refine Dahl's admittedly broad-brushed approach.

Mark A. Graber

I'm a big fan (what else is new) of the so-called "regime politics" literature and an even bigger fan of Howard Gillman's contributions (he "accidently" omitted his award winning essay in the 2002 APSR and his contribution to the recent Kahn/Kersch volume--both of which ought to be required readings in public law graduate courses). Still, I wonder whether "regime politics" correctly captures what is going on. Gillman is interested in "how much of the behavior of judges -- and (for that matter) how much of the development of law -- can be explained if we assume that courts often serve what Robert Dahl once called the "dominant governing coalition" of a polity." My own sense of the universe is that while some legal developments can be said to serve the interests of the dominant governing coalition (Jacksonians from all over the spectrum wanted the court to decide Dred Scott), more often than not, judicial review serves the interests of only some members of the dominant coalition. I think I can explain why some large number of Republicans welcomed Lawrence (either because they liked the result or wanted the court to resolve the issue), but I would not say it served the interests of the entire coalition. This was a point I tried to make, but did not make at all clearly in the very dated "Non-majoritarian" essay alluded to in the main post (boy, do I wish I could rewrite the thing in light of what others have taught me). Dominant national coalitions are quire frequently fragmented, that rather than understand judicial review as either thwarting or serving the interests of dominant national coalitions, we would better understand the practice as advancing some fragments of the dominant national coalition at the expense of others. (Think Kevin McMahon's story of how Democrats in the executive branch used courts to circumvent Democrats in the Congress on racial issues).

Sean Wilson

Whether a Court supports regime legitimacy is a function of whether the emergent hegemony in the polity is strong enough to capture the Court, and therefore leave its mark upon the construction of doctrine itself (Paretti). That the Supreme Court as an institution is designed to minimize this sort of "capture" means that, quite often, the Court obstructs the hegemonic forces that are building elsewhere in American Government. Hence, you have the 4 horsemen during Roosevelt, commerce clause reversals during Clinton, sodomy and affirmative action during republican government, etc.

However, if the hegemonic force is so strong -- FDR wiping out laissez faire ideology and forcing Republicans to adopt some form of progressive goverment -- you see the Court legitimizing the new hegemony, despite the fact that many of its conservative justices dislike the outcome.

When I teach con law, I organize each class around the different theses you present. In the powers class, you see the Court as an institution that ultimately legitimizes a larger current of power that became so dominant in American Politics (deference to central prerogatives, be they Federalist, Jacksonian, Roosevelt, or wartime). In con law II, however, the story becomes significantly reversed: the Court is willing to inject itself into the liberty politics of American Government and become a more substantial policy player. Why? The hegemony on those matters afflicts the polity to a lesser degree. Any lasting viewpoint consensus is too transient. (Flag burning might be an exception).

So I guess what I am saying is this: stupid is as stupid does. What hegemony does on the Court -- what role the institution adopts -- is a function of the hegemony itself, not the Court apart from that. The judicial role is not a prescription; it is a behavior.

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