The Variable Power Of Courts

This dissertation analyzed the extraordinary expansion of the power of the Supreme Court of India from 1967 to 2007, through close study of the Court's politically significant decisions in the areas of fundamental rights and governance. During this period, the justices of the Supreme Court India shifted toward greater activism in constitutional interpretation, and toward heightened, albeit selective, assertiveness, and greater authority, in challenging the exercise of Central Government power. Referencing existing public law theories, this study sought to provide an explanatory account of this shift by analyzing both the motives that drove judicial activism and assertiveness and the opportunity structure for judicial power. The interaction of these two factors are examined through close analysis of the Court's decision-making in politically significant rights and governance decisions, through field interviews with retired judges, legal scholars and other experts on the Court, and through analysis of news editorial coverage of these decisions. To understand the expansion of the power of the Indian Court, this study looks both within the Court, highlighting the sources of the judges' institutional values and policy worldviews, and outside the Court to understand how the broader political, and professional and intellectual elite environment, both shaped and constrained the assertiveness and authority of the Court. I argue that the Court's shift toward activism, selective assertiveness, and greater authority in rights can most adequately be explained by the thesis of "elite institutionalism." According to the thesis of elite institutionalism, the unique institutional environment and intellectual atmosphere of the Court shapes the institutional perspectives and policy worldviews that drove activism and selective assertiveness in rights and governance decisions. I found that the identity of judges as members of the Supreme Court and judicial branch, and their professional alignment with the Court as an institution was a source of the judges' values and motivations in key decisions. Indeed, much of the Court's activism and assertiveness was driven by the judges' desire to protect constitutionalism and fundamental rights and the Court's role in protecting both, and later, a drive in the post-Emergency era to build popular support to bolster the Court's legitimacy. This is in line with "historical new institutionalist" scholarship (e.g. Gillman 1993) that suggests that judges may be motivated by a unique "institutional mission" that flows from their membership and identification with the judicial branch (see Gillman 1993; Keck 2008). Elite institutionalism, however, differs from existing institutionalist theories by situating judicial decision-making within the larger intellectual milieu and context of Indian judging. I argued in this study that judges' institutional mission or outlook/identity is a subset or part of a judges' overall intellectual identity and worldviews, which judges tend to share with professional and intellectual elites in India. The Indian judiciary--the judges of the Indian Supreme Court and High Courts--reflect the broader ethos of professional and intellectual elite opinion nationally. I contend that the justices of the Court were part of, and influenced by broader elite "meta-regimes"--The collective values or currents of professional and intellectual elite opinion on a set of constitutional or political issues. In the pre-Emergency period, the Court's basic structure doctrine decisions were shaped and influenced by the meta-regime of "constitutionalism." In the area of fundamental rights, shifts in the Court's activism and selective assertiveness in fundamental rights cases in the post-Emergency era (1977-2007) reflected a broader shift from influence of the meta-regime of "liberal democracy" to that of "liberal reform. In the area of governance, I suggest that broader shifts in the Court's activism and selective assertiveness reflected a shift from the meta-regime of social justice, to liberal reform. The study also illustrates how the thesis of elite institutionalism helps complement and broaden the strategic model of the political opportunity structure. In the post-Emergency era, and in particular, in the post-1990 period, the Court's authority was bolstered by stronger levels of intellectual and professional elite opinion, and national public support. This was because political regimes in the post-1990 era perceived that the Court had higher levels of public support vis-à-vis the Executive and Parliament (as illustrated by elite news coverage of the Court's decisions, and news coverage of public reactions and debate within Parliament and among ministers in the Executive branch). Political regimes in this era were reluctant to attack or resist the Court's assertive judicial decisions in rights and governance cases, because of public support for the Court's relative effectiveness in ameliorating governance failures. The Court's strong level of authority, then, was not only a result of the weakening of political institutions at the Central Government level. In addition, the Court's authority has been bolstered by the elite media and leaders of the Indian Bar who have played a crucial role in framing and shaping public perception of the Court's activist and assertive decisions. Media elites, and other governance constituencies such as the Bar, policy groups, court-appointed commissions, and opposition parties in the Central Government, have continued to play a crucial role as a powerful ally and advocate for the Court's activism and selective assertiveness in fundamental rights decisions. This is reflected in the strong levels of support in national newspapers' editorial coverage of most of the Court's assertive and deferential decisions in the post-1990 period. The national news media, the Bar, and opposition political parties have thus emerged as "watchdogs" (see Vanberg 2001; Staton 2002) that enable other elites, and the national public to monitor the Central Government's compliance with the Court's decisions in the area of fundamental rights. The thesis of elite institutionalism illustrates how the media and legal elites, and governance constituencies, can help constrain political actors and bolster the authority of courts, by closely scrutinizing government policies for compliance with the rule of law and constitutional norms.

Lasser examines in detail four periods during which the Court was widely charged with overstepping its constitutional power: the late 1850s, with the Dred Scott case and its aftermath; the Reconstruction era; the New Deal era; and the years of the Warren and Burger Courts after 1954. His thorough analysis of the most controversial decisions convincingly demonstrates that the Court has much more power to withstand political reprisal than is commonly assumed. Originally published in 1988. A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? The Constrained Court combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. The Constrained Court shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.

What motivates political actors with diverging interests to respect the Supreme Court's authority? A popular answer is that the public serves as the guardian of judicial independence by punishing elected officials who undermine the justices. Curbing the Court challenges this claim, presenting a new theory of how we perceive the Supreme Court. Bartels and Johnston argue that, contrary to conventional wisdom, citizens are not principled defenders of the judiciary. Instead, they seek to limit the Court's power when it suits their political aims, and this inclination is heightened during times of sharp partisan polarization. Backed by a wealth of observational and experimental data, Bartels and Johnston push the conceptual, theoretical, and empirical boundaries of the study of public opinion of the courts. By connecting citizens to the strategic behavior of elites, this book offers fresh insights into the vulnerability of judicial institutions in an increasingly contentious era of American politics.

The Politics of Precedent on the U.S. Supreme Court offers an insightful and provocative analysis of the Supreme Court's most important task--shaping the law. Thomas Hansford and James Spriggs analyze a key aspect of legal change: the Court's interpretation or treatment of the precedents it has set in the past. Court decisions do not just resolve immediate disputes; they also set broader precedent. The meaning and scope of a precedent, however, can change significantly as the Court revisits it in future cases. The authors contend that these interpretations are driven by an interaction between policy goals and variations in the legal authoritativeness of precedent. From this premise, they build an explanation of the legal interpretation of precedent that yields novel predictions about the nature and timing of legal change. Hansford and Spriggs test their hypotheses by examining how the Court has interpreted the precedents it set between 1946 and 1999. This analysis provides compelling support for their argument, and demonstrates that the justices' ideological goals and the role of precedent are inextricably linked. The two prevailing, yet contradictory, views of precedent--that it acts either solely as a constraint, or as a "cloak" that never actually influences the Court--are incorrect. This book shows that while precedent can operate as a constraint on the justices' decisions, it also represents an opportunity to foster preferred societal outcomes.

Published here with a new chapter covering judgements from 1993 to 1995, Raw judicial power? is established as the definitive analysis of the powerful forces shaping the United States Supreme Court today. Robert J. McKeever analyses the approach of the Court to the most pressing contemporary social issues, such as capital punishment, abortion, race and affirmative action, gender equality and religion, sex and politics. He shows how social policy initiatives in the US have often come from the judicial rather than the legislative branch of government, leading to charges that the Supreme Court has been exercising 'raw judicial power'. He examines the policy decisions the Court has made, and argues that the Court has increasingly jettisoned traditional notions of constitutional interpretation in order to tackle the conflicts in contemporary American society. Students of American politics, constitutional law and social policy will all find this book invaluable.

American Judicial Power: The State Court Perspective is a welcome addition to the breadth of studies on the American legal system and provides an accessible and highly illuminating overview of the state courts and their functions. The study of America’s courts is overwhelmingly skewed toward the federal government, and therefore often overlooks state courts and their importance. Michael Buenger and Paul De Muniz fill this gap in the study of American constitutionalism, as they examine the wide and distinctive powers these courts exercise, and their role in administering the bulk of the nation’s justice system. This groundbreaking work covers many critical topics pertaining to the state courts, including: a comparison of the role of state and federal courts, the history of America’s state courts, the judicial selection processes utilized in the states, the unique roles assigned to state courts and the varying structure of those courts, the relationship between state judicial power and state legislative power, and the opportunities and challenges that are and will be facing the state courts. With an insightful foreword from Sanford Levinson, this revolutionary book will be of interest to students, educators, and researchers in the fields of law, political science, and government. Constitutional law experts will also benefit from an analysis of the state courts and their powers.

Few institutions in the world are credited with initiating and confounding political change on the scale of the United States Supreme Court. The Court is uniquely positioned to enhance or inhibit political reform, enshrine or dismantle social inequalities, and expand or suppress individual rights. Yet despite claims of victory from judicial activists and complaints of undemocratic lawmaking from the Court's critics, numerous studies of the Court assert that it wields little real power. This book examines the nature of Supreme Court power by identifying conditions under which the Court is successful at altering the behavior of state and private actors. Employing a series of longitudinal studies that use quantitative measures of behavior outcomes across a wide range of issue areas, it develops and supports a new theory of Supreme Court power.

Barber shows that New Right theorists, such as Bork, and establishment liberals, such as Ronald Dworkin, are moral relativists who cannot escape conclusions ("might makes right," for example) that could destroy constitutionalism in America. The best hope for American freedoms, Barber argues, is to revive classical constitutionalism - and he explains how new movements in philosophy today allow the Court's friends to do just that. Written in a lively and engaging style.