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Merely Judgment

Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court

Martin J. Sweet
Copyright Date: 2010
Pages: 240
https://www.jstor.org/stable/j.ctt6wrr4r
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  • Book Info
    Merely Judgment
    Book Description:

    Merely Judgmentuses affirmative action in government contracting, legislative vetoes, flag burning, hate speech, and school prayer as windows for understanding how Supreme Court decisions send signals regarding the Court's policy preferences to institutions and actors (such as lower courts, legislatures, executive branches, and interest groups), and then traces the responses of these same institutions and actors to Court decisions. The lower courts nearly always abide by Supreme Court precedent, but, to a surprising degree, elected branches and other institutions avoid complying with Supreme Court decisions. To explain the persistence of unconstitutional policies and legislation, Sweet isolates the ability of institutions to derail the litigation process. Merely Judgment explores the mechanisms by which litigants and their peers have escaped from the clutches of litigation and thus effectively ignored, evaded, and trumped the Supreme Court.

    eISBN: 978-0-8139-3077-0
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-vii)
  3. List of Tables and Figures
    (pp. viii-viii)
  4. ACKNOWLEDGMENTS
    (pp. ix-xiv)
  5. INTRODUCTION
    (pp. 1-28)

    In 1983, a dispute over a fairly small contract to install fixtures in a city jail began that would end years later by placing the U.S. Supreme Court at the center of the nation’s affirmative action policies.¹ The city of Richmond, Virginia, had passed a law requiring construction firms bidding on government work to subcontract at least 30 percent of the dollars at stake in the contract to minority-owned businesses. The contract in question, which called for a bidder to supply and install plumbing supplies in the Richmond jail, received only a single bid. J. A. Croson Company, an Ohio-based...

  6. 1 SUPREME POLICYMAKING
    (pp. 29-58)

    The Supreme Court’s ruling inCity of Richmond v. J.A. Croson Co.was neither the Court’s first foray into affirmative action nor its last. In fact, the Supreme Court had ruled just nine years earlier on a federal contracting affirmative action program and would rule six years later on another separate federal contracting affirmative action program. As I detail below, there have been massive legislative responses toCroson,interest group activity, and executive action. Therefore it seems appropriate to think aboutCrosonand its aftermath as constitutional dialogue—as the outlines of a back-and-forth examination of the meaning of the...

  7. 2 PHILADELPHIA AND THE ONGOING DIALOGUE
    (pp. 59-75)

    Philadelphia, it is said, is a city of firsts.¹ Philadelphia had the first American stock exchange, theater, merry-go-round, and daily newspaper. It also had the first stone bridge, paper mill, insurance company, telephone book, and public schools in the colonies. As the city that gave birth to the U.S. Constitution, it is thus only fitting that Philadelphia has figured so prominently at the beginning of the country’s history with affirmative action. Not only did Presidents Johnson and Nixon develop the first federal race-based affirmative action contracting program, the aptly named Philadelphia Plan, for Philadelphia, but Philadelphia was the site of...

  8. 3 PORTLAND AND UNSUCCESSFUL COURT–ELECTED BRANCH INTERACTIONS
    (pp. 76-92)

    In the 1983 movieWar Games,a computer programmed to think and speak runs through several simulations of both tic-tac-toe and the “real-life” game Global Thermonuclear War. Failing to find a winnable pattern to ensure victory, the computer declares, “Strange game. The only way to win is not to play at all.” The City of Portland, Oregon, has similarly learned how not to play the litigation game. Rather than constantly amending its affirmative action program for government contracting in reaction to the courts, the city has been able to maintain its unconstitutional affirmative action program by blocking the threat of...

  9. 4 MIAMI AND EXECUTIVE CHECKMATE
    (pp. 93-123)

    Popular legend holds, probably incorrectly, that President Andrew Jackson, in response to a U.S. Supreme Court ruling that Georgia had improperly taken Cherokee lands, said, “John Marshall has made his decision; now let him enforce it.” As we know today, Supreme Court decisions are not self-enforcing. The case of Miami demonstrates that the Supreme Court can simultaneously change behavior and appear powerless. Understood in this way and in the context of the constitutional dialogue literature, the case of Miami also demonstrates the uneasiness of the categories of successful and unsuccessful court–elected branch interactions while highlighting the need for judicial...

  10. 5 BEYOND AFFIRMATIVE ACTION
    (pp. 124-154)

    The varied reactions of the elected branches to the Supreme Court’s decision inCity of Richmond v. J.A. Croson Co.in cities across America demonstrated some different techniques for elected branch monopolization of the constitutional dialogue. Faced with judicial solidarity between the Supreme Court and the lower courts, Philadelphia, Portland, and Miami struggled in different ways to maintain an affirmative action contracting program. Philadelphia and the courts engaged in a long-drawn-out litigation–legislation modification–legislation cycle that wound up with the courts finding Philadelphia’s program unconstitutional. Portland engaged an interest group in crafting its new policy and made concessions to...

  11. CONCLUSION
    (pp. 155-176)

    In the preceding pages I have explained what can happen after the Supreme Court exercises its power of judicial review, striking down laws as unconstitutional. With all the attention focused on who the Supreme Court justices are, how each justice views the Constitution, and how each justice might vote on the next big case, it is surprising how relatively little attention is paid to the actual consequences of constitutional decision making. It is particularly curious that we do not always understand what happens after the Court decides, because who the justices are, how each justice views the Constitution, and how...

  12. NOTES
    (pp. 177-206)
  13. INDEX
    (pp. 207-220)
  14. Back Matter
    (pp. 221-222)