Neutrality, Legitimacy, and the Supreme Court: Some Intersections between Law and Political Science

Abstract

The work of Professor Martin Shapiro is distinguished by lucidity, an analytical turn of mind, formidable sophistication, and a thoroughly readable style. A political scientist by training, Shapiro is very much at home with the tools and techniques of the lawyer. His flair for case analysis is much in evidence in Law and Politics in the Supreme Court In the chapters on tax and labor policy, for example, his view of the Court as a political agency furthering its interests through interaction with other agencies such as the Internal Revenue Service and the National Labor Relations Board is developed through close readings of decisions 2 and comparisons among groups of cases.' Indeed, Shapiro's analysis of the reapportionment controversy demonstrates a regard for lawyers' sensibilities seemingly above and beyond the call of duty-considerably more than half the chapter is devoted to a closely reasoned parsing of the "political question" cases." Shapiro's regard for "lawyer's law," however, is only apparently excessive. His focus on the interaction among governmental agencies inevitably involves consideration of cases in which the Court paces the boundaries of its own jurisdiction. And as Professor Bickel's work in The Least Dangerous Branch' testifies, this judicial mapping of spheres of competence is preeminently "lawyer's law," with compass directions provided in the arcane terminology of "case and controversy," "standing," and "ripeness." Yet it is precisely here that Shapiro breaks decisively with conventional legal approaches. Shapiro denominates his view "political jurisprudence." ' Postulating

The Legal Structures of Subordination

“…These are devices for a minimalist court, and not an activist court. Yet critics of these approaches have long pointed out that the deployment of minimalist devices requires the court to use its political judgment and thus it does not really extract the court from politics (Deutsch 1968;Tushnet 2005).…”

Reconsidering Whence and Whither Political Jurisprudence

“…Some scholars, such as Stumpf here, also find very problematic the extent to which political jurisprudence ever became embedded in law school curriculum. They will find unpersuasive that half of Shapiro's citations are to writings of law professors, rather than to those of political scientists; or that a number of legal scholars have borrowed theories and models from political science (and other social sciences) when examining the adjudicatory process, changing patterns of litigation and the evolution of substantive legal doctrines (Deutsch 1968;Stewart 1975;Chayes 1976;Diver 1981;and Breyer 1982).…”

“…In the last twenty years, noticeably, with few exceptions (Deutsch 1968) there have been no significant, detailed discussions of &dquo;political jurisprudence&dquo; in either law reviews or journals of political science.…”