Studies in Law, Politics, and Society

STUDIES IN LAW, POLITICS, AND SOCIETY Series Editor: Austin Sarat Volumes 1–2: Edited by Rita J. Simon Volume 3: Edited by Steven Spitzer Volumes 4–9: Edited by Steven Spitzer and Andrew S. Scull Volumes 10–16: Edited by Susan S. Sibey and Austin Sarat Volumes 17–33: Edited by Austin Sarat and Patricia Ewick Volumes 34–43: Edited by Austin Sarat STUDIES IN LAW, POLITICS, AND SOCIETY VOLUME 44 SPECIAL ISSUE CONSTITUTIONAL POLITICS IN A CONSERVATIVE ERA EDITED BY AUSTIN SARAT Department of Law, Jurisprudence & Social Thought and Political Science, Amherst College, USA United Kingdom – North America – Japan India – Malaysia – China JAI Press is an imprint of Emerald Group Publishing Limited Howard House, Wagon Lane, Bingley BD16 1WA, UK First edition 2008 Copyright r 2008 Emerald Group Publishing Limited Reprints and permission service Contact: [email protected] No part of this book may be reproduced, stored in a retrieval system, transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without either the prior written permission of the publisher or a licence permitting restricted copying issued in the UK by The Copyright Licensing Agency and in the USA by The Copyright Clearance Center. No responsibility is accepted for the accuracy of information contained in the text, illustrations or advertisements. The opinions expressed in these chapters are not necessarily those of the Editor or the publisher. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978-0-7623-1486-7 ISSN: 1059-4337 (Series) Awarded in recognition of Emerald’s production department’s adherence to quality systems and processes when preparing scholarly journals for print LIST OF CONTRIBUTORS Thomas F. Burke Department of Political Science, Wellesley College, Wellesley, MA, USA Ronald Kahn Department of Politics, Oberlin College, OH, USA Scott E. Lemieux Department of Political Science, Hunter College, CUNY, New York, NY, USA George I. Lovell Department of Political Science, University of Washington, Seattle, WA, USA Ira L. Strauber Department of Political Science, Grinnell College, Grinnell, IA, USA George Thomas Department of Political Science, Williams College, Williamstown, MA, USA David A. Yalof Department of Political Science, University of Connecticut, Storrs, CT, USA vii EDITORIAL BOARD Gad Barzilai Laura Gomez University of Washington University of New Mexico and Tel Aviv University Piyel Haldar Paul Berman Birkbeck College, University of Connecticut University of London Roger Cotterrell Thomas Hilbink Queen Mary College University of Massachusetts University of London Desmond Manderson Jennifer Culbert McGill University Johns Hopkins University Jennifer Mnookin Eve Darian-Smith University of California, University of Massachusetts Los Angeles David Delaney Laura Beth Nielsen Amherst College American Bar Foundation Florence Dore Paul Passavant Kent State University Hobart and William Smith College David Engel Susan Schmeiser State University of New York University of Connecticut at Buffalo Jonathan Simon Anthony Farley University of California, Boston College Berkeley David Garland Marianna Valverde New York University University of Toronto Jonathan Goldberg-Hiller Alison Young University of Hawaii University of Melbourne ix UNDERSTANDING THE IMPACT AND VISIBILITY OF IDEOLOGICAL CHANGE ON THE SUPREME COURT Scott E. Lemieux and George I. Lovell ABSTRACT This chapter offers an explanation for the mixed record of the Supreme Court since the 1960s, and considers the implications of that record for the future. The chapter emphasizes that judicial power is connected to choices made by other political actors. We argue that conventional ways of measuring the impact of Court rulings and the Court’s treatment of precedents are misleading. The Court cannot be understood as a counter- majoritarian protector of rights. In both past and future, electoral outcomes determine the policy areas in which the Court will be influential, and also the choices the justices make about how to portray their treatment of law and precedents. Special Issue: Constitutional Politics in a Conservative Era Studies in Law, Politics, and Society, Volume 44, 1–33 Copyright r 2008 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(08)00801-6 1 2 SCOTT E. LEMIEUX AND GEORGE I. LOVELL INTRODUCTION: RIGHTS, MAJORITIES, AND WARREN COURT HANGOVERS Earl Warren was Chief Justice for fifteen years, and left the Supreme Court almost forty years ago. Yet the constitutional scholarship inspired by the Warren Court continues to haunt both scholarly and popular under- standings of the Supreme Court. Landmark liberal rulings during Warren’s tenure inspired seminal works in constitutional theory that introduced the terminology and theoretical constructs that many scholars continue to use as they try to understand the ongoing role of the Court in the political system. The scholars inspired by Warren’s tenure often applauded the liberal direction of the Court and developed faith in the Court as a positive force for social change. However, they also worried that unelected judges were making policy rather than elected officials. Constitutional scholars thus struggled to construct interpretive theories that could reconcile ‘‘counter- majoritarian’’ judicial review with their commitments to representative democracy.1 While court scholars took different approaches and reached different conclusions, they shared an underlying understanding of the nature of judicial power and the role of the courts in the political system. First, they understood judicial decisions that struck down state or federal laws as instances where unelected judges established policy outcomes different from the ones preferred by the elected officials. Such rulings appeared to thwart the will of popular majorities, acting through elected representatives. Thus, the power to strike down laws was potentially undemocratic, and in need of special justification. Second, most scholars understood this power to reverse legislation as a fixed and stable institutional power. Although judicial review was not directly mentioned in the Constitution, they understood the power as firmly established by the Supreme Court in Marbury v. Madison (1803).2 They also saw the institutional capacity of judges to reverse legislative outcomes as the result of permanent features of the Constitution. These included the guarantee of life tenure, which shielded judges from retaliation from both other branches and tides of popular opinion; and the Constitution’s cumbersome supermajority requirements for amendment, which meant that judges would allegedly have the final word on constitutional interpretation. Third, scholars thought that, despite these underlying concerns, judicial review could be a justifiable and attractive component of a liberal democratic state. The seemingly undemocratic nature of judicial review Understanding the Impact and Visibility of Ideological Change 3 allowed judges to perform an essential role in a constitutional democracy: Preserving the constitutional rights of minorities against the threat of majority tyranny. This view of the Court’s role, undoubtedly inspired by several high-profile Warren Court rulings protecting minority rights, meant that scholars could conclude that judicial review could be legitimate in some instances. It also led them to develop methods for distinguishing instances where judges preserved rights or values that were truly part of the Constitution from instances where political or ideological judges abused their power by reading new rights or values into the Constitution. These basic assumptions about the nature, sources, and role of judicial power have structured both normative and empirical work on the Court. Normative constitutional law scholars tried to evaluate the Court’s constitutional rulings by testing whether the Court’s justifications were appropriately tethered to constitutional values or constitutional text. Such scholars offered various theories and methods of interpretation for evaluating and perhaps controlling judicial power.3 Meanwhile many empirical scholars in political science devoted their attention to measuring the extent to which actual judicial decisions could be matched to the legal justifications that judges offered. These scholars delighted in challenging normative scholars by showing that judicial rulings could be predicted by looking at the political ideology of judges, and without paying much attention to legal or constitutional criteria (e.g., Segal & Spaeth, 2002; for an overview of this literature, see Baum, 1997). Despite their differences in approach and conclusions, the more empirically minded political scientists (like the constitutional theorists) understood judicial power as fixed by constitutional guarantees and thus unconstrained by ordinary democratic processes. The recasting of the Court in the role of protector of minorities was a tempting move by scholars trying to explain or justify an atypically liberal Court. The model’s persistence as a general model of how the Court works is, however, rather puzzling, given both the Court’s history before Warren and the changes that the Court has experienced since Warren’s departure. Before World War II, the Court openly clashed with elected officials much less frequently. Moreover, the cases where earlier Courts did succeed in reversing determined

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