American Politicians Confront the Court

Abstract

Politicians have long questioned, or even been openly hostile to, the legitimacy of judicial authority, but that authority seems to have become more secure over time. What explains the recurrence of hostilities and yet the security of judicial power? Addressing this question anew, Stephen Engel points to the gradual acceptance of dissenting views of the Constitution, that is, the legitimacy and loyalty of stable opposition. Politicians' changing perception of the threat posed by opposition influenced how manipulations of judicial authority took shape. Engel's book brings our understanding of these manipulations into line with other developments, such as the establishment of political parties, the acceptance of loyal opposition, the development of different modes of constitutional interpretation and the emergence of rights-based pluralism.

The Chief Justice versus the iconoclast: Popular constitutionalism and support for using “sociological gobbledygook” in legal decisions

“…However, this conventional wisdom does not apply uniformly to the entire public because not everyone desires a court that applies the law mechanically without any use of discretion (Bonneau et al, 2016;Gibson, 2012;Gibson & Caldeira, 2009, 2011Scheb & Lyons, 2001). Some prefer that rather than just applying the law mechanically, judges should take into account public opinion (Parker & Woodson, 2020).…”

“…However, if there was a political dispute concerning judicial supremacy and popular constitutionalism, "what is certain is that popular constitutionalism was the clear victor each time matters came to a head…The pattern began to change only in the latter half of the twentieth century." That mass public support for popular constitutionalism was matched at the elite level with many of America's most important Presidents like Jefferson, Jackson, Lincoln and both Roosevelts espousing support for the Court following the public will (Engel, 2011). In marked contrast to how the most judges would describe themselves today, the Framers' of the American Constitution predominately viewed judges "as representatives of the people and servants of the popular sovereignty equal to other branches and not necessarily as neutral arbiters held apart from politics" (Engel, 2011, p. 74).…”

The Adaptability Paradox: Constitutional Resilience and Principles of Good Government in Twenty-First-Century America

“…One effect has been to subject judicial appointments, top to bottom, to ideological litmus tests. Begun by Richard Nixon and institutionalized by Ronald Reagan, intensive political screening by rotating bands of partisans has extended the contentiousness and irresolution of the political branches into the courts (Engel 2011). When high-profile Court decisions divide sharply according to the partisan affiliation of the appointing president, faith in the rule of law corrodes, as does the independent authority of the Court itself.…”