Constructing the State Action Doctrine, 1940–1990

Abstract

According to the state action doctrine, the Constitution restricts the activities of governmental but not private entities. Despite this rule's apparent simplicity, the Supreme Court has been clearly uncomfortable with precedents like Shelley v. Kraemer (1948) and has varied considerably in its receptiveness to state action claims from 1940 to 1990. The attitudinal model provides barely a beginning in accounting for both Shelley and changes in state action limitations. While liberal justices did initially relax state action requirements and conservative justices subsequently tightened them, that explanation ignores changes in the NAACP's litigation strategy, the Court's creation of doctrinal alternatives, and powerful civil rights legislation that together produced a sharp decline in state action claims involving race after 1970. These nonattitudinal “regime politics” factors enable a more complete and nuanced understanding of the state action field and help us to see the Court as collaborative rather than independent, dependent, or countermajoritarian.

Gerrymandering from the Bench? The Electoral Consequences of Judicial Redistricting

“…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. A long string of Democratic presidential victors created the Warren Court, which then worked collaboratively with Democratic leaders in the other branches to implement KennedyJohnson liberalism and battle the South on issues of race, religion, and criminal justice (Peretti 2010, Powe 2000. Such collaboration includes Baker v. Carr, which Whittington characterizes as the Court not ''simply acting on behalf of popular majorities,'' but instead ''cutting through the 'political thicket''' and assisting ''liberal Democrats who had long chaffed [sic] at the legislative obstacle posed by entrenched conservatives' ' (2005, 588).…”