Understanding the impact and visibility of ideological change on the supreme court

DOIhttps://doi.org/10.1016/S1059-4337(08)00801-6
Published date06 May 2008
Pages1-33
Date06 May 2008
AuthorScott E. Lemieux,George I. Lovell
UNDERSTANDING THE IMPACT
AND VISIBILITY OF IDEOLOGICAL
CHANGE ON THE SUPREME
COURT
Scott E. Lemieux and George I. Lovell
ABSTRACT
This chapter offers an explanation for the mixed record of the Supreme
Court since the 1960s, and considers the implications of that record for
the future. The chapter emphasizes that judicial power is connected to
choices made by other political actors. We argue that conventional ways
of measuring the impact of Court rulings and the Court’s treatment of
precedents are misleading. The Court cannot be understood as a counter-
majoritarian protector of rights. In both past and future, electoral
outcomes determine the policy areas in which the Court will be influential,
and also the choices the justices make about how to portray their
treatment of law and precedents.
Special Issue: Constitutional Politics in a Conservative Era
Studies in Law, Politics, and Society, Volume 44, 1–33
Copyright r2008 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(08)00801-6
1
INTRODUCTION: RIGHTS, MAJORITIES,
AND WARREN COURT HANGOVERS
Earl Warren was Chief Justice for fifteen years, and left the Supreme Court
almost forty years ago. Yet the constitutional scholarship inspired by the
Warren Court continues to haunt both scholarly and popular under-
standings of the Supreme Court. Landmark liberal rulings during Warren’s
tenure inspired seminal works in constitutional theory that introduced the
terminology and theoretical constructs that many scholars continue to use
as they try to understand the ongoing role of the Court in the political
system. The scholars inspired by Warren’s tenure often applauded the
liberal direction of the Court and developed faith in the Court as a positive
force for social change. However, they also worried that unelected judges
were making policy rather than elected officials. Constitutional scholars thus
struggled to construct interpretive theories that could reconcile ‘‘counter-
majoritarian’’ judicial review with their commitments to representative
democracy.
1
While court scholars took different approaches and reached different
conclusions, they shared an underlying understanding of the nature of
judicial power and the role of the courts in the political system. First, they
understood judicial decisions that struck down state or federal laws as
instances where unelected judges established policy outcomes different
from the ones preferred by the elected officials. Such rulings appeared to
thwart the will of popular majorities, acting through elected representatives.
Thus, the power to strike down laws was potentially undemocratic, and in
need of special justification.
Second, most scholars understood this power to reverse legislation as a
fixed and stable institutional power. Although judicial review was not
directly mentioned in the Constitution, they understood the power as firmly
established by the Supreme Court in Marbury v. Madison (1803).
2
They also
saw the institutional capacity of judges to reverse legislative outcomes as the
result of permanent features of the Constitution. These included the
guarantee of life tenure, which shielded judges from retaliation from both
other branches and tides of popular opinion; and the Constitution’s
cumbersome supermajority requirements for amendment, which meant that
judges would allegedly have the final word on constitutional interpretation.
Third, scholars thought that, despite these underlying concerns, judicial
review could be a justifiable and attractive component of a liberal
democratic state. The seemingly undemocratic nature of judicial review
SCOTT E. LEMIEUX AND GEORGE I. LOVELL2
allowed judges to perform an essential role in a constitutional democracy:
Preserving the constitutional rights of minorities against the threat of
majority tyranny. This view of the Court’s role, undoubtedly inspired by
several high-profile Warren Court rulings protecting minority rights, meant
that scholars could conclude that judicial review could be legitimate in some
instances. It also led them to develop methods for distinguishing instances
where judges preserved rights or values that were truly part of the
Constitution from instances where political or ideological judges abused
their power by reading new rights or values into the Constitution.
These basic assumptions about the nature, sources, and role of judicial
power have structured both normative and empirical work on the Court.
Normative constitutional law scholars tried to evaluate the Court’s
constitutional rulings by testing whether the Court’s justifications were
appropriately tethered to constitutional values or constitutional text. Such
scholars offered varioustheories and methods of interpretation for evaluating
and perhaps controlling judicial power.
3
Meanwhile many empirical scholars
in political science devoted their attention to measuring the extent to which
actual judicial decisions could be matched to the legal justifications that
judges offered. These scholars delighted in challenging normative scholars by
showing that judicial rulings could be predicted by looking at the political
ideology of judges, and without paying much attention to legal or
constitutional criteria (e.g., Segal & Spaeth, 2002; for an overview of this
literature, see Baum, 1997). Despite their differences in approach and
conclusions, the more empirically minded political scientists (like the
constitutional theorists) understood judicial power as fixed by constitutional
guarantees and thus unconstrained by ordinary democratic processes.
The recasting of the Court in the role of protector of minorities was a
tempting move by scholars trying to explain or justify an atypically liberal
Court. The model’s persistence as a general model of how the Court works
is, however, rather puzzling, given both the Court’s history before Warren
and the changes that the Court has experienced since Warren’s departure.
Before World War II, the Court openly clashed with elected officials much
less frequently. Moreover, the cases where earlier Courts did succeed in
reversing determined elected officials in the national government do not
match the Warren Court’s reputation as a ‘‘counter-majoritarian’’ protector
of the rights of discrete and insular minorities (Dahl, 1957). Earlier
confrontations with the Court involved decisions protecting the interests of
numeric minorities who were less attractive to liberal scholars, including
slave owners, proprietary capitalists, factory owners who wanted to employ
Understanding the Impact and Visibility of Ideological Change 3

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