Policymaking and the Modern Court: When do Supreme Court Rulings Prevail?

• Date: 01 December 1989
• DOI: 10.1177/106591298904200404
• Author: Thomas R. Marshall
• Published date: 01 December 1989
• Subject Matter: Articles

POLICYMAKING

AND

THE

MODERN

COURT:

WHEN

DO

SUPREME

COURT

RULINGS

PREVAIL?

THOMAS

R.

MARSHALL

University

of

Texas

at

Arlington

VAILABLE

research

offers

strikingly

different

images

of

the

~~

Supreme

Court’s

success

as

a

policy-maker.

On

one

hand,

some

accounts

depict

the

Supreme

Court

as

a

powerful

policy-maker,

whose

rulings

are

rarely

overturned.

Only

six

to

nine

Constitutional

amendments

have

overturned

specific

Court

rulings

(Abraham

1980:

351-58;

Library

of

Congress

1973:

1789-97,

1983:

S332-33).

Despite

periodic

Court-curbing

efforts

in

Congress

(Nagel

1965;

Handberg

and

Hill

1980),

the

Court’s

supporters

have

usually

blocked

efforts

to

over-

turn

specific

rulings

or

to

limit

the

Court’s

appellate

jurisdiction

(Adamany

and

Grossman

1983;

Schmidhauser

and

Berg

1972).

In-

deed,

several

unpopular

rulings,

such

as

the

school

prayer

decisions

(Weissberg

1976:

121-26)

have

prevailed

for

long

periods

of

time.

Still

other

accounts,

however,

challenge

this

image

of

a

uniformly

successful

Court.

Several

authors

argue

that

Congress

often

revises

the

Court’s

statutory

construction

(Dahl

1957;

Harvard

Law

Review

1958;

Handberg

and

Hill

1980;

Krislov

1965:

143;

Murphy

1962;

Nagel

1969;

Pritchett

1961;

Stumpf

1965;

Ulmer

1960).

Other

authors

con-

tend

that

the

Court

seldom

successfully

defies

Congress

and

mass

public

opinion

(Dahl

1957;

Ulmer

1960).

Many

accounts

provide

in-

stances

of

rulings

which

were

ignored

or

reinterpreted

by

lower

federal

or

state

courts

(Harvard

Law

Review

1954;

Johnson

1979;

Murphy

1959;

Sheldon

1974:

197),

by

administrative

agencies

(Shapiro

1968),

or

by

local

officials

(Barth

1968;

Becker

1969;

Becker

and

Feeley

1973;

Birkby

1966;

Canon

1974;

Dolbeare

and

Hammond

1971;

Goldman

and

Jahnige

1985:

221-22;

Patric

1957;

Wasby,

D’Amato,

and

Metrailer

1977).

The

Supreme

Court

itself

may

also

overrule,

erode,

&dquo;distinguish,&dquo;

or

otherwise

abandon

its

own

rulings

(Blaustein

and

Field

1958;

Burnet

v.

Coronado

Gas

and

Oil

Co.,

1932;

Douglas

1949;

Library

of

Congress

1973,

1983;

Murphy

1972:

146-63).

Received:

July

27,

1988

Revision

Received:

November

29,

1988

Accepted

for

Publication:

December

2,

1988

NOTE:

I

would

like

to

thank

Lee

Epstein,

Elliot

Slotnick,

and

the

reviewers

for

their

comments

on

this

article.

The

National

Endowment

for

the

Humanities

provided

research

support.