How could a Roberts-Alito court support the Republican political agenda?

11/10/05

New political science research shows 'friendly judicial review' can help

Washington, DC--Judicial review can revive the stalled legislative agendas of the political majority. This finding challenges the widely held assumption that judicial activism generally contradicts the interest of elected officials. It also provides insight into how-- given the appointment of John Roberts and nomination of Samuel Alito--a conservative-leaning Supreme Court could help the Republican leadership achieve its political goals.

The research, conducted by political scientist Keith E. Whittington (Princeton University), examines the conditions under which the U.S. Supreme Court "assists powerful officials within the current government in overcoming various structural barriers to realizing their ideological objectives through direct political action." Whittington's article appears in the November issue of the American Political Science Review, a journal of the American Political Science Association (APSA). It is available online at http://www.apsanet.org/imgtest/APSRNov05Whittington.pdf.

"Structural characteristics of political systems such as the United States encourage cooperation between judges and political leaders to obtain common objectives," observes the author. Those characteristics include federalism, entrenched interests, and fragmented political coalitions and have encouraged support for judicial review by governing political coalitions throughout U.S. history. Several such instances are examined in the article:

  • States have been the principal target of the review power of the Supreme Court--making federalism a crucial factor in generating national political support for judicial review. The Court "largely built its power of judicial review…by acting against the states," striking down state and local policies over 1,100 times but federal policies only 150 times.

  • Entrenched interests across branches and within legislative chambers often obstruct efforts to alter the status quo, preventing political leaders from achieving their goals. Yet political leaders have pushed the Court to enact constitutionally-based reform--as with the Kennedy administration and the 1962 legislative apportionment decision of Baker v. Carr.

  • Fractious party coalitions undermine party unity, often leading to policy compromises that political leaders may want to see undone through judicial review. The 1895 invalidation of the federal income tax, strategies of the 1950s Democratic Party for dealing with racial civil rights, and the rejection of the 1996 Communications Decency Act reflect this dynamic.

"Judicial review disrupts the policy status quo. The standard assumption within…constitutional theory…assumes that the status quo being disrupted reflects the policy preferences of [current political] leaders," concludes Whittington. However, "over the course of its history the U.S. Supreme Court has won political support by judicial review not by acting against current governing coalitions but by working within those coalitions."

Political support builds public backing and legitimacy for the Court. This article suggests that the Court's authority may be at its peak when it is working with elected leaders who seek to advance contested ideological commitments while managing established but fractious coalitions. Given today's divided Republican majority and the changing orientation of the Supreme Court, this research provides valuable insight into the ability of the Court to "interpose its friendly hand" and assist the GOP leadership in achieving their goals.

Source: Eurekalert & others

Last reviewed: By John M. Grohol, Psy.D. on 21 Feb 2009
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