A Political Regimes Approach to the Analysis of Legal Decisions

Clayton, Cornell W.; May, David A.

doi:10.2307/3235284

Cited by 26 publications

(11 citation statements)

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“…(Clayton and Pickerill, 2006: 1391)As Gillman writes, “the influence of regime politics ensures that federal judges, especially at the top of the judicial hierarchy, will have concerns and preferences that are usually in sync with other national power holders” (2006: 108). Central to understanding how this operates in practice, proponents argue, are influences like the legal positions articulated by political elites during elections and in party platforms, the judicial appointments process, and positions taken by legislators, the solicitor general, state governments and interest groups (Clayton and May, 1999).…”

Section: Political Regimes and American Judicial Decision Makingmentioning

confidence: 99%

“You Can't Always Get What You Want”: Regime Politics, the Supreme Court of Canada, and the Harper Government

Macfarlane

2017

Can J Pol Sci

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Applying the regime politics approach to the study of judicial behaviour, which regards the Supreme Court as largely operating to preserve the policy agenda of the existing lawmaking majority, this paper evaluates the Court's behaviour during the Conservative government's tenure. There is evidence to support the basic core of the regime politics thesis. The Court rarely invalidates laws passed by the sitting government. Nonetheless, the Court's behaviour during the Conservative government's tenure was distinctive. Incorporating a measure of issue salience—the relative importance of the policies affected—into the analysis demonstrates the Court's impact on the Conservatives' policy agenda stands in sharp contrast to previous governments. It is the only government of the Charter period to have policies in its election platforms blocked by judicial review and the only government in Canadian history to effectively lose all of the constitutional reference cases it posed to the Court.

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Section: Political Regimes and American Judicial Decision Makingmentioning

confidence: 99%

“You Can't Always Get What You Want”: Regime Politics, the Supreme Court of Canada, and the Harper Government

Macfarlane

2017

Can J Pol Sci

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“…As Rosenberg memorably and provocatively echoed Dahl in 1991, after closely studying judicial efforts to advance civil and women's rights, and reaffirmed in 2008, after closely studying recent judicial efforts to advance same-sex marriage rights, "US courts can almost never be effective producers of social reform" ðRosenberg 1991, 338;2008, 442; emphasis in the originalÞ. 2 Despite the prominent view that courts are relatively weak and inconsequential policy makers, Dahl's and Rosenberg's views have been disputed ðsee, e.g., Casper 1976;Gates 1992;McCann 1992McCann , 1994Melnick 1994Melnick , 1996Canon 1998;Flemming, Bohte, and Wood 1998;Paris and McMahon 1998;Schultz and Gottlieb 1998;Zalman 1998;Clayton and May 1999;Whittington 2003;Klarman 2004;Pickerill and Clayton 2004;Tushnet 2006;Keck 2009;Swedlow 2009Þ, and many scholars point to particular areas in which courts have made and continue to make policy ðsee, e.g., Melnick 1994;Epp 1998Epp , 2009Feeley and Rubin 1998;Mather 1998;Reed 2001;Frymer 2003;Keck 2009;Swedlow 2009Þ. The most significant, broad-based challenges are found in two recent studies.…”

Section: P R E V I O U S V I E W S O F J U D I C I a L P O L I C Y M mentioning

confidence: 99%

Judicial Contributions to US National Policy Change since 1945

Ssm

Wedlow

2015

J. law courts

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How often, at what times, and on what issues do courts directly make policy or indirectly influence policy making by other branches of government? We assess the judicial contribution to policy change using 268 policy histories covering 14 issue areas of US domestic policy making from 1945 to 2004. Contrary to the prominent view that courts are relatively inconsequential policy-making institutions, we find that federal courts made or influenced nearly one in four significant federal policy changes. Courts directly made almost as many significant policies as the executive branch and indirectly influenced about as many significant policies in other branches as Congress. We also find that judicial policy making and influence are concentrated in a few time periods and issue areas.

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“…Although not all RPA scholars rely on this broader conception of historical regimes, many have employed the idea to explain the Court's behavior (Clayton and May 1999; Johnsen 2003; Pickerill and Clayton 2004, 241; Clayton and Pickerill 2006, 1385–88; Gillman 2006, 108; Tushnet 2006, 11; Whittington 2007, 28–40). Even those scholars who do employ this theory are not uniform in their accounts of when particular regimes have achieved or lost dominance throughout US history.…”

Section: Foundations Of Regime Politicsmentioning

confidence: 99%

“…“[T]he Court assists powerful officials within the current government in overcoming various structural barriers to realizing their ideological objectives through direct political action” (Whittington 2005a, 582). Even if judges are not “deciding cases on the basis of personal policy preferences or strategic calculations about their power relative to the other branches,” justices will still be “sensitive to the dominant values of the political regime” because “legal institutions are embedded within, and draw meaning from, the larger political regime” (Clayton and May 1999, 244–45).…”

Section: The Basic Claims Of Regime Politicsmentioning

confidence: 99%

Rethinking Regime Politics

Hall

2012

Law soc. inq.

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Many recent studies of "regime politics" argue that judicial review is ultimately used to promote the interests of the dominant governing regime. I explore this claim by evaluating whether the invalidation of federal laws by the US Supreme Court fits the empirical expectations of the regime politics approach. I find that the Court frequently invalidates statutes when (1) the ideology of the Court diverges from that of the sitting elected branches (suggesting that the Court does not fear sanctions or nonimplementation), and (2) the ideology of the sitting elected branches converges with that of the elected branches that enacted the statute (suggesting that the Court is defying the sitting elected branches). My findings suggest that the Court does not primarily use judicial review to promote the interests of the dominant governing regime.

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A Political Regimes Approach to the Analysis of Legal Decisions

Cited by 26 publications

References 0 publications

“You Can't Always Get What You Want”: Regime Politics, the Supreme Court of Canada, and the Harper Government

“You Can't Always Get What You Want”: Regime Politics, the Supreme Court of Canada, and the Harper Government

Judicial Contributions to US National Policy Change since 1945

Rethinking Regime Politics

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