American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power

ISBN-13: 9780521192958 / Angielski / Twarda / 2011 / 406 str.

Stephen M Engel

Opis

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. As politicians' views toward opposition changed over time, their approach toward the judiciary where opposition could become entrenched changed as well. Once opposition was no longer seen as a fundamental threat to the Constitution's survival, and multiple constitutional interpretations were considered legitimate, judicial power could be construed less as the seat of an illegitimate opposition and more as an instrument to achieve political ends. Politicians were more likely to harness it to serve their aims than to openly undermine its legitimacy. In short, conflicts between the elected branches and the judiciary have not subsided. They have changed form. They have shifted from measures that undermine judicial legitimacy to measures that harness judicial power for political ends. 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."

Recenzje

“How is it that American courts could be such a regular target of political attack and yet remain so seemingly invulnerable to those attacks? Stephen Engel offers compelling evidence demonstrating that, far from seeking to destroy or eradicate the courts, politicians on both sides of the ideological divide have come to understand that the courts are a powerful tool. Their attacks are now crafted to push and pull the courts to serve the politicians’ policy goals, rather than to block or undermine judicial power.”
– Gordon Silverstein, University of California, Berkeley

Spis treści

1. Introduction: had Americans 'stopped understanding about the three branches'?; Part I. Political Development and Elected-Branch Relations with the Judiciary: 2. Beyond the countermajoritarian difficulty; 3. A developmental theory of political manipulation of judicial power; Part II. Hostility to Judicial Authority and the Political Idiom of Civic Republicanism: 4. In the cause of unified governance: undermining the court in an anti-party age; 5. Party against partisanship: single-party constitutionalism and the quest for regime unity; 6. 'As party exigencies require': republicanism, loyal opposition, and the emerging legitimacy of multiple constitutional visions; Part III. Harnessing Judicial Power and the Political Idiom of Liberal Pluralism: 7. Clashing progressive solutions to the problem of judicial authority; 8. In a polity fully-developed for harnessing (I): living constitutionalism and the policization of judicial appointment; 9. In a polity fully-developed for harnessing (II): a conservative insurgency and a self-styled majoritarian court responds; 10. Conclusion: on the 'return' of opposition illegitimacy and the prospects for new development.