American politicians confront the court : opposition by Stephen M. Engel

By Stephen M. Engel

Politicians have lengthy wondered, or perhaps been brazenly adversarial to, the legitimacy of judicial authority, yet that authority turns out to became safer over the years. What explains the recurrence of hostilities and but the protection of judicial energy? Addressing this question anew, Stephen Engel issues to the slow popularity of dissenting perspectives of the structure, that's, the legitimacy and loyalty of solid competition. Politicians' altering belief of the probability posed by way of competition motivated how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced through the years, their process towards the judiciary - the place competition may possibly turn into entrenched - replaced to boot. as soon as competition used to be now not noticeable as a basic probability to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial strength should be construed much less because the seat of an illegitimate competition and extra as an software to accomplish political ends. Politicians have been prone to harness it to serve their goals than to brazenly undermine its legitimacy. in brief, conflicts among the elected branches and the judiciary haven't subsided. they've got replaced shape. they've got shifted from measures that undermine judicial legitimacy to measures that harness judicial energy for political ends. Engel's e-book brings our figuring out of those manipulations into line with different advancements, comparable to the institution of political events, the attractiveness of unswerving competition, the advance of other modes of constitutional interpretation, and the emergence of rights-based pluralism.

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56) 42 Geyh, 5. , 11, 18–21, 253–82. Beyond the Countermajoritarian Difficulty 29 authority must follow, especially if the issue of judicial power does not hold public attention. Furthermore, evidence of recurrent position-taking against judicial authority would call into question a judicial supremacy norm at the popular level. In short, failure to pass court-curbing legislation cannot be considered a failed attack without a clearer understanding of politicians’ multiple and simultaneous goals.

B. Strategic Interest:€Politicians Want Strong Judiciaries A second model dismisses the countermajoritarian threat not because the Court eventually falls in line with the aims of the governing regime but because strong judicial power, even if periodically countermajoritarian, serves politicians’ interests. â•›. â•›. ”24 Politicians can and will use courts to pursue policy goals or to deflect accountability. Ibid. Recent years have witnessed continued support for the underlying principles of Roe v.

S. 306 (2003). 23 See Jeffrey Segal, “Separation-of-Powers Games in the Positive Theory of Congress and Courts,” American Political Science Review 91 (March 1997), 28–44; and McNollgast, “Politics and the Courts:€A Positive Theory of Judicial Doctrine and the Rule of Law,” Southern California Law Review (1994–95), 1631–84; Tom S. Clark, “The separation of Powers, Court Curbing, and Judicial Legitimacy,” American Journal of Political Science 53(October 2009), 971–89. 24 Neal Devins and Louis Fisher, The Democratic Constitution (New York:€Oxford University Press, 2004), 11.

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