American Politicians Confront the Court: Opposition Politics by Stephen M. Engel

By Stephen M. Engel

Politicians have lengthy wondered, or perhaps been brazenly antagonistic 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 safety 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 sturdy competition. Politicians' altering belief of the chance posed by means of competition inspired how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced over the years, their method towards the judiciary - the place competition may well develop into entrenched - replaced to boot. as soon as competition used to be now not obvious as a primary possibility to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial energy will be construed much less because the seat of an illegitimate competition and extra as an device 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 publication brings our realizing of those manipulations into line with different advancements, akin to the institution of political events, the recognition of unswerving competition, the improvement of other modes of constitutional interpretation, and the emergence of rights-based pluralism.

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70 Resolutions for a pro-life amendment were not included in the dataset. However, bills curbing jurisdiction such that lower federal courts could no longer rule on matters of abortion were included. ╇ Periods of frequent Court-curbing legislation. 2. Duplicate entries under distinct index headings were excluded. Actions against personnel aside from judges, for example, marshals or district attorneys, were excluded. 4. Bills and resolutions for building courthouses or dividing states into new districts were eliminated, but the creation of circuits was included.

28 Gillman, 2002, 512. 29 Ran Hirschl, Toward Juristocracy:€ The Origins and Consequences of the New Constitutionalism (Cambridge, MA:€Harvard University Press, 2004), 39. 30 Mancur Olsen, “Dictatorship, Democracy, and Development,” American Political Science Review 87 (September 1993), 567–76; Barry Weingast, “The Political Foundations of Democracy and the Rule of Law,” American Political Science Review 91 (June 1997), 245–63. , Constitutionalism and Democracy (New York:€Cambridge University Press, 1988); Alec Stone Sweet, “Judicialization and the Construction of Governance,” Comparative Political Studies 32 (1989), 147–84.

10 On the judiciary as protecting minority rights, see John Hart Ely, Democracy and Distrust (Cambridge:€Harvard University Press, 1980); and William N. , “Pluralism and Distrust:€How Courts Can Support Democracy by Lowering the Stakes of Politics,” Yale Law Journal 114 (2005), 1279–328. On boundary conditions for judicial review, see Ian Shapiro, Democratic Justice (New Haven:€Yale University Press, 1999); Jeremy Waldron, “The Core Case against Judicial Review,” Yale Law Journal 115 (2006), 1346–406; and, Ronald Dworkin, Freedom’s Law:€The Moral Reading of the American Constitution (New York:€Oxford University Press, 1996).

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