By Stephen M. Engel
Politicians have lengthy puzzled, or perhaps been overtly adverse 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 query anew, Stephen Engel issues to the sluggish attractiveness of dissenting perspectives of the structure, that's, the legitimacy and loyalty of good competition. Politicians' altering belief of the chance posed through competition stimulated how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced over the years, their strategy towards the judiciary - the place competition may possibly turn into entrenched - replaced to boot. as soon as competition was once now not noticeable as a basic hazard to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial energy may be construed much less because the seat of an illegitimate competition and extra as an device to accomplish political ends. Politicians have been likely to harness it to serve their goals than to brazenly undermine its legitimacy. briefly, 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 strength for political ends. Engel's publication brings our knowing of those manipulations into line with different advancements, akin to the institution of political events, the popularity of dependable competition, the improvement of other modes of constitutional interpretation, and the emergence of rights-based pluralism.
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Additional info for American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power
S. 112 (1970). Similarly, statutory reversals of judicial rulings are not necessarily attempts to discipline the Court but to clarify existing statute in an ongoing inter-branch colloquy. Judges may clarify legislation that was either intentionally or unintentionally vague, asking legislators to respond. See Jeb Barnes, Overruled? (Stanford:Â€Stanford University Press, 2004); and Shep Melnick, Between the Lines (Washington, DC:Â€Brookings Institution, 1994). 59 This is the distinction between diffuse and specific support.
113 (1973) even as the Court has put some restrictions on access to abortion. See, for example, Planned Parenthood v. S. 833 (1992). Note also the Court’s overturning of the criminalization of consensual homosexual sex in its decision in Lawrence and Garner v. S. 558 (2003) and its upholding of affirmative action in university admissions in Grutter 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:Â€A Positive Theory of Judicial Doctrine and the Rule of Law,” Southern California Law Review (1994–95), 1631–84; Tom S.
They rationalize review as essential for protecting minority rights, prescribe boundaries on its exercise, or even advocate popular review. 10 But the Court is not anomalous among governing institutions in its countermajoritarian impulse. 11 Thus, something other than claims of Alexander Bickel, The Least Dangerous Branch (New Haven:Â€Yale University Press, 1986), 239, 18. ” Political Science Quarterly 27 (March 1912),1–35. 7 Bickel, 69. ” 8 Jonathan O’Neill, Originalism in American Law and Politics:Â€ A Constitutional History (Baltimore:Â€Johns Hopkins University Press, 2007), 43–66.