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The Constrained Court

The Constrained Court: Law, Politics, and the Decisions Justices Make

Michael A. Bailey
Forrest Maltzman
Copyright Date: 2011
Pages: 216
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  • Book Info
    The Constrained Court
    Book Description:

    How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors?The Constrained Courtcombines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court.

    Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president.

    The Constrained Courtshatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.

    eISBN: 978-1-4008-4026-7
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xiv)
  4. Chapter 1 INTRODUCTION
    (pp. 1-16)

    Immediately following the Supreme Court’s ruling inBush v. Gore(2000), George Washington University law professor Jeffrey Rosen expressed shock that the justices in the majority did “not even bother to cloak their willfulness in legal arguments intelligible to people of good faith.” Rosen believed that the decision “made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor” (2000).

    Rosen was not alone within the legal academy. Over five...

  5. Chapter 2 THE MEASURE OF LAW: Estimating Preferences across Institutions and Time
    (pp. 17-44)

    Richard Nixon campaigned for president in 1968 on the platform of defending the “silent majority” against the perditions of an overly liberal Supreme Court. He promised to appoint justices who would “strengthen the peace forces as against the criminal forces in the land” and appreciate the tenets of “laws and order” (quoted in Abraham 1999, 9).

    In short order, fate gave Nixon a chance to fundamentally remake the Court. Chief Justice Earl Warren stepped aside in June 1968 in an effort to ensure that President Johnson could name his successor (Ward 2003, 171). But Warren’s plan came undone when Justice...

  6. Part I. Legal Value Constraints

      (pp. 47-63)

      In response to a neighbor’s false report about a man “going crazy” with a gun, an armed Harris County sheriff’s deputy entered John Lawrence’s unlocked apartment on September 17, 1998. Instead of finding a dangerous situation, the deputy found an awkward one: Lawrence and another man were engaged in intimate sexual acts. The deputy arrested both men based on a Texas anti-sodomy law that prohibited anal and oral sex between members of the same sex. They spent the night in jail and were eventually fined $200.

      Lawrence challenged his conviction on the grounds that the law itself violated both his...

    • Chapter 4 LAW MATTERS
      (pp. 64-79)

      On March 24, 1998, a divided Supreme Court upheld Hugo Almendarez-Torres’ eighty-five-month sentence for reentering the United States after a previous deportation. The reason Almendarez-Torres was sentenced to more than seven years in jail for this crime was that he had had a burglary conviction prior to his first deportation. Without this prior conviction, the maximum statutory penalty for reentering was less than a third of the sentence he received. The Supreme Court held that this much stiffer sentence could be imposed on Almendarez-Torres even though the indictment did not mention and the jury did not establish that a prior...

      (pp. 80-92)

      No one doubts Felix Frankfurter’s liberal pedigree. Before serving on the Court, Frankfurter helped found the American Civil Liberties Union (ACLU), wrote a book criticizing death sentences for Nicola Sacco and Bartolomeo Vanzetti, and advised Franklin Roosevelt. However, on the Court, Frankfurter was widely viewed as a conservative jurist. He took conservative positions on anti-communist cases (Friedman 2009, 255) and labor cases (Spaeth and Altfeld 1986) and frequently butted heads with liberal justices (Urofsky 1991, 63; Ely 1980, 3). Statistical studies place him on the conservative end of the bench (Bailey 2007; Martin and Quinn 2002).

      One source of Frankfurter’s...

  7. Part II. Political Constraints

      (pp. 95-120)

      Judicial review was born of a conflict between the courts, Congress, and the president. After Thomas Jefferson and the National-Republicans won the election of 1800, the lame-duck Federalists expanded the jurisdiction of federal circuit courts with the 1801 Judiciary Act (Turner 1961). Seeing this act as a Federalist effort to thwart the newly elected National-Republicans, they repealed it by passing the 1802 Judiciary Act. However, National-Republicans feared that the 1802 act would be declared unconstitutional by a Supreme Court led by Federalist Chief Justice John Marshall. Therefore, they abolished the Supreme Court’s June and December terms and established a February...

      (pp. 121-139)

      Two of the most important Supreme Court cases in recent years stem from the University of Michigan’s decision to deny admission to two white applicants, Jennifer Gratz and Barbara Grutter. After their rejection, both women sued the university, claiming that the university’s affirmative action policies unconstitutionally denied them admission. Ms. Gratz objected to a point system that automatically gave applicants to the undergraduate program from under-represented groups 20 extra points (out of 100 needed to be admitted). Ms. Grutter objected to the law school’s policy of taking race into account, although less formally.

      The cases put the Bush administration in...

    • Chapter 8 CONCLUSION
      (pp. 140-155)

      Few cases better demonstrate the limits of the attitudinal model thanTexas v. Johnson(1989). The case originated when Gregory Lee Johnson burned an American flag outside the 1984 Republican National Convention in Dallas. He was arrested and convicted for vandalizing a respected object, but the Texas Court of Criminal Appeals overturned the conviction on First Amendment grounds. The case went to the U.S. Supreme Court where Justice Brennan wrote a majority opinion that upheld the lower court’s decision, thereby freeing Johnson.

      The outcome was not what was puzzling from the attitudinal model perspective; the voting alignment of the justices...

    (pp. 156-174)
  9. NOTES
    (pp. 175-184)
    (pp. 185-202)
  11. INDEX
    (pp. 203-217)