It is not uncommon for legal scholars to conceptualize courts as acting in opposition to politics -- as restraining or checking the exercise of power. On this view, it is reasonable to assume that, in most cases, the exercise of judicial power comes at the expense of other power holders.
Over the last few years a number of scholars, working under the rubric of a "regime politics" approach to the study of courts, have flipped this assumption in order to explore 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 (see "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," Journal of Public Law 6 (1957): 279–295). It is a starting point that is also consistent with Martin Shapiro's argument (developed in his book Courts: A Comparative and Political Analysis, among other places) that we should think of courts as inevitably constructed to advance the interests of the regime with which they are affiliated. (All of this is premised on the assumption that the staffing and jurisdiction of courts is typically controlled by other power holders who are not exclusively motivated by concerns about competence and integrity.)
What roles might courts play in promoting the political agenda of dominant governing coalitions?
Cornell Clayton and Mitch Pickerill have recently demonstrated that the modern Court's federalism decisions have been closely adapted to match the evolving post-1970 positions of the major parties on federal-state relations (see "The Rehnquist Court and the Political Dynamics of Federalism," Perspectives on Politics 2 (2004):233-48). Keith Whittington just published a piece in the APSR on "political supports for the exercise of judicial review," in which he argued that current officeholders may encourage more active judicial review when sympathetic judges can be counted on to remove obstacles to governance, such as state resistence to federal power, entrenched interests in competitive institutions, or fragmented and cross-pressured political coalitions (see APSR 99 (Nov.2005) or here). This last point echoes Mark Graber's very important argument about how legislatures often want courts to take the lead in policy making when an issue threatens to disrupt existing governing coalitions ("The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary," Studies in American Political Development 7 (1993):35.) Courts may also be a place where partisans can "entrench" their policy making preferences (see Balkin and Levison, "Understanding Constitutional Revolution," Virginia Law Review 87 (2001):1045).
For purposes of theory development, here is an initial list of some of the ways in which courts might serve the interests of partisan governing coalitions. Happily, there is an existing body of research associated with just about every point:
- Courts might act as policy-making partners with existing governing coalitions
- Courts might help remove obstacles to governance
- Courts might provide signals/feedback that help policy makers reevaluate policy based on unintended consequences
- Courts might impose national norms on regional outliners
- Courts might enchance "credible commitments" to favored constituencies
- Courts might enhance "credible commitments" made during the establishment of a new constitutional order
- Courts might act to stabilize partisan coalitions, especially when other power holders delegate to judges decision making authority to address politically-sensitive issues (what might be called the "base closing commission" model)
- Courts might provide a mechanisn for partisan entrenchment
I point this out to (a) alert ELS scholars of this developing research tradition, (b) encourage them to consider how this perspective might illuminate still unexplored areas of the law or judicial practice, and (c) invite others to add to the list of ways in which courts serve party coalitions.