Doctoral Dissertation in Law and Social Science: Attacking the Court: The Logic of An American Tradition

Yale University, New Haven CT

Investigators

Abstract

PI and C-PI: Gregory A. Huber and Stephen M. Engel Doctoral Dissertation in Law and Social Science: Attacking the Court: The Logic of An American Tradition SES - 0719031 Over the last decade, rhetorical attacks on federal judicial power have increased. Yet, while elected officials, interest groups leaders, and academics decry the undemocratic potential of the courts, such speechifying is hardly new. These attacks have occurred throughout American history; some amount to rhetorical bluster, others more credible threats to strip judicial power, and still others are characterized by the passage of measures that structurally weaken the federal courts. What accounts for this variation? Why do more recent attacks on the federal judiciary never rise above rhetoric whereas nineteenth-century instances are characterized by measures passed to structurally weaken the Court? By investigating cases where anti-Court actions are taken, i.e., jurisdiction stripping, court-stacking, judicial impeachment, etc., as well as cases where anti-Court rhetoric is prevalent yet no disciplinary action follows, I develop a theory explaining this pattern. Rather than rely on norms of judicial supremacy as much of the current literature does, I contend that rhetorical attack without follow-through is a rational strategy contingent on changes over time to extra-constitutional institutions, such as parties, that influence how politicians view constitutional institutions, such as the judiciary. Thus, while it may be in politicians' short-term electoral interest to attack the undemocratic potential of the federal judiciary, exploiting the specter of a "countermajoritarian difficulty", it may also be in their long-term interest to maintain judicial power as a useful weapon to implement policy aims. Evidence is gathered from large-N and case study analysis. To construct a dataset of when anti-Court action was considered, I evaluate national party platforms and House and Senate Journals. These sweeps are used to test whether anti-Court rhetoric and/or action is correlated with periods of heightened party polarization and cohesion in Congress. Case study description and analysis of five particular instances of anti-Court rhetoric and action will rely on the platforms, chamber floor debates as well as other data collected through archival research. Analysis of the contemporary instance of anti-judicial sentiment and action will also involve interviewing elected and interest group elites. Anti-Court sentiment is an important American political tradition. While the rhetoric recurs regularly, whether politicians will weaken the Court structurally is politically contingent, and those conditions conducive to attack beyond rhetoric could therefore return. Thus, the recent increase in signing statements, the suspension of habeas corpus through the Military Commissions Act of 2006, and the former Republican House's passage of measures to strip jurisdiction in matters related to abortion, marriage, and religious expression from lower federal courts remind us of that potential.