The Supreme Court and Constitutional Theory: 1953-1993.

Author:Krislov, Daniel

By Ronald Kahn.(1) Lawrence, KS.: University Press of Kansas. 1994. x+ 316 pp. $35.00

Daniel Krislov(2)

In this book, Professor Kahn attempts to explain the decisionmaking processes of the Supreme Court of the United States. In doing so, he attempts to discredit what he terms the "instrumental" approaches to understanding these processes, and instead postulates that the Court takes a "constitutive approach" in its decisionmaking. Unfortunately, Kahn's arguments lack substance, and therefore fail to convince at least this reader that he is on to something.

Kahn identifies four different "instrumental" approaches. The first of these he terms the "election returns" approach. This is most strongly identified with political scientist Robert Dahl.(3) This approach views the Court as being a political institution with decisionmaking processes "not significantly different" from those of the elective branches of government and their appointees.(4) Justices are, according to Kahn's version of this view, concerned with the making of policy choices, and principles of natural and fundamental rights do not play a significant role in decisionmaking.(5) Dahl believes that the Court follows the policymaking preferences of the majority of the electorate, and serves primarily to legitimize the majority coalition's interpretation of the Constitution.(6) Views held by the Court that are contrary to those held by the majority coalition will, after some lag time, change so as to become aligned with the majority while the president, with the advice and consent of Congress, alters the Court through the appointments process.(7) In Dahl's view, it is the majority coalition, which itself consists of a collection of minority groups, that can be the effective guarantor of rights in the American system. Natural and fundamental rights, precedent, and legal doctrines are merely the tools the Court uses in legitimizing the majority coalition's vision of society.(8)

The second "instrumental approach" identified by Kahn is the "policymaking approach" most strongly associated with political scientist Martin Shapiro.(9) Like Dahl, Shapiro sees the Court as a political policymaking institution, in which the decisions of the Court reflect the policy preferences of the Justices rather than legal precedent and rules.(10) Unlike Dahl, however, Shapiro sees the Court as having significant independent policymaking ability. Thus, the Court is able to decide whether to embark in new policy directions in the absence of strong support or pressure from interest groups or the elective branches of government. Shapiro argues that the Court's authority stems from its ability to react to diffuse but strong public support for constitutional values such as free speech.(11)

The third "instrumental approach" is the "safety valve approach." Adherents of this view, such as Anthony Lewis(12) and Archibald Cox,(13) believe that the Court serves to ensure the proper functioning of the pluralist political system. This view accepts Dahl's view of the equilibrium of the pluralist majority coalition as the protector of individual rights, but also holds that the Court has a necessary role in the maintenance of the system--i.e., that of counteracting the malfunctions of state and federal political institutions.(14) In this view, the Court and the law must be autonomous from the political branches of government.

The fourth "instrumental approach" is the "biographical approach."(15) This approach views the Justices' decisionmaking processes as being determined by their own polity and rights principles, and these principles are, in turn, determined by the Justices' biographical experiences. Legal debate amongst the Justices is not, in this view, the "epiphenomenal" cover for policy...

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