Courts Serving Party Coalitions

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.

Comments

[Romel]

Good website!

[Mr/Alex]

Nice site!
http://www.rwcotton.com/go/etc/black-jack-online.html black jack online

:)

[Mr/Alex]

Nice site!
http://www.rwcotton.com/go/etc/play-black-jack.html play black jack

:)

[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.