Constructing Judicial Review

Abstract

New works by five young political scientists are establishing a new paradigm for studying judicial review. In different ways, Terri Peretti, Ran Hirschl, George Lovell, Kevin McMahon, and Thomas Keck point out that judicial review is established and maintained by elected officials. Adjudication is one of many means that politicians and political movements employ when seeking to make their constitutional visions the law of the land. Elected officials provide vital political foundations for judicial power by creating constitutional courts, vesting those courts with jurisdiction over constitutional questions, staffing those courts with judges prone to exercising judicial power, assisting or initiating litigation aimed at having those courts declare laws unconstitutional, and passing legislation that encourages justices to make public policy in the guise of statutory or constitutional interpretation. Judicial review does not serve to thwart or legitimate popular majorities; rather, it is a practice that alters the balance of power between the numerous political movements that struggle for power in a pluralist democracy.

Gerrymandering from the Bench? The Electoral Consequences of Judicial Redistricting

“…According to this model, politicians carefully structure, empower, and populate courts in ways that insure the regime's electoral and policy success. Judges in this view are not neutral and independent decision makers, but partisan collaborators who craft and apply legal doctrine that advances the interests of the regime (Graber 2005, Whittington 2005). For example, regimists see the Warren Court as majoritarian rather than counter-majoritarian and as a partner in, and product of, the Democratic coalition that dominated the national government for most of the 1932-1968 period.…”

Holding the Accountability Problem Accountable: Response Mechanisms to Counter-Majoritarian Decisions

“…In this way, this paper adds to the regime politics' efforts to dispel the countermajoritarian myth (Graber 2005;2008a;2008b). However, rather than demonstrating that rulings previously thought to be counter-majoritarian actually align with the majority coalition's preferences (Graber 1993;Gillman 2006a;Whittington 2005), it accepts that some decisions truly are counter-majoritarian.…”

Donald Trump and Institutional Change Strategies

“…Put simply, the law matters, and it opens up or closes off possible courses of political action. Imagine if the tax code suggested that the Internal Revenue Service prosecute cases of "significant" tax fraud versus mandating that the agency prosecute "all" 1 For example, Justices can issue favorable rulings (Clayton and Pickerill 2004;Pickerill and Clayton 2004), get around immovable roadblocks in the Legislature (McMahon 2004), handle coalition-splitting issues that Congress has passed off (Graber 1993(Graber , 2005(Graber , 2006Clayton 2002;Lovell 2003;Lemieux and Lovell 2010), rein in regional outliers that deviate from national norms (Klarman 1996;Graber 1998;Powe 2000), or provide rear-guard protection against new-guard insurgents (Gillman 2002(Gillman , 2006b).…”