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In Defense of a Political Court

In Defense of a Political Court

Terri Jennings Peretti
Copyright Date: 1999
Pages: 384
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  • Book Info
    In Defense of a Political Court
    Book Description:

    Can the Supreme Court be free of politics? Do we want it to be? Normative constitutional theory has long concerned itself with the legitimate scope and limits of judicial review. Too often, theorists seek to resolve that issue by eliminating politics from constitutional decisionmaking. In contrast, Terri Peretti argues for an openly political role for the Supreme Court.

    Peretti asserts that politically motivated constitutional decisionmaking is not only inevitable, it is legitimate and desirable as well. When Supreme Court justices decide in accordance with their ideological values, or consider the likely political reaction to the Court's decisions, a number of benefits result. The Court's performance of political representation and consensus-building functions is enhanced, and the effectiveness of political checks on the Court is increased. Thus, political motive in constitutional decision making does not lead to judicial tyranny, as many claim, but goes far to prevent it. Using pluralist theory, Peretti further argues that a political Court possesses instrumental value in American democracy. As one of many diverse and redundant political institutions, the Court enhances both system stability and the quality of policymaking, particularly regarding the breadth of interests represented.

    eISBN: 978-1-4008-2335-2
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-2)
  4. Introduction
    (pp. 3-8)

    This candid remark of Chief Justice Hughes has been frequently cited, often accepted,² but never endorsed as an ideal state of affairs. This book comes rather close to doing just that.³ It provides more than a grudging acceptance of the reality that the Constititution lacks determinate meaning apart from that provided by Supreme Court justices and that the justices’ personal political preferences strongly influence their interpretations of the Constitution. It celebrates that reality and regards political motivation on the part of the justices as critical to insuring that the Court exercises its power of judicial review in a responsible, legitimate,...

  5. PART I. The Failure of Contemporary Constitutional Theory

    • CHAPTER 1 Conventional Constitutional Theory: The Neutralist Approach
      (pp. 11-35)

      Constitutional theory attempts to resolve the question of the legitimacy of judicial review in a democracy. As Professor Siegan has simply stated the matter, “The United States Supreme Court is an unusual institution for a nation that proclaims its dedication to democratic processes.”¹ Why, scholars ask, should we entrust power in a democracy to a deviant, undemocratic institution such as the Supreme Court? Its members are unelected, serve “during good behavior,” typically for life, and can be removed from office only through the difficult and rarely employed impeachment process.² Additionally, the Court’s decisions, made pursuant to its power of judicial...

    • CHAPTER 2 Constitutional Indeterminacy and Judicial Subjectivity: Critical Legal Studies
      (pp. 36-54)

      The present chapter will examine one of the most important of the neutralists’ assumptions in their attempt to reconcile judicial review with democratic values. That assumption is the existence of a neutral or objective theory of constitutional interpretation that significantly constrains judicial choice and significantly inhibts the influence of the justices’ personal values on constitutional decisions.

      One type of evidence bearing on this assumption is the existence of “valuevoting,” in which the justices decide in accordance with their personal political attitudes and preferences. In other words, constitutional outcomes may be better explained, as an empirical matter, as the product of...

    • CHAPTER 3 The Skeptics and the Idea of Provisional Review
      (pp. 55-74)

      An interesting development in several recent theories of judicial review is the idea of “provisional review.” Quite simply, provisional review would permit the political branches to check in some manner the constitutional decisions of the Supreme Court. This alternative type of review has been advocated by scholars such as Harry Wellington, Michael Perry, Paul Dimond, and John Agresto as a way to reconcile discretionary and subjective judicial review with democratic values.¹

      Provisional review places a normative stamp of approval on the conclusions of various empirical studies regarding the finality of Supreme Court decisions. In his often-cited 1957 article, Robert Dahl...

  6. PART II. In Defense of a Political Court

    • Introduction
      (pp. 77-79)

      The persistent search for neutral or principled grounds as the only legitimate bases for constitutional decisions is driven by the rejection of political motive in constitutional decisionmaking. Traditional theories of judicial review seek to exorcise, to the greatest degree possible, subjectivity, discretion, and personal political preference from constitutional interpretation. Critical Legal Studies scholars attempt to reveal the subjective and politically biased nature of all ostensibly neutral and coherent constitutional decisionmaking, but for the overriding purpose of denigrating it as arbitrary and oppressive. Provisional review proponents (or at least Wellington and Perry)¹ permit Court’s constitutional judgments to be influenced by the...

    • CHAPTER 4 The Virtues of Political Motive in Constitutional Decisionmaking: Political Representation
      (pp. 80-132)

      Legitimate doubts exist regarding our ability to eliminate, or minimize even significantly, the need for subjective value judgments in constitutional decisionmaking. Yet the traditional scholar clings to that hope, due to the horror with which they regard the alternative—a political Court. This chapter and the next will argue that politically motivated constitutional decisionmaking is mischaracterized by traditional scholars and its virtues are overlooked. As will be demonstrated, value-voting and policy motivation on the part of the justices serve a number of democratic ends. First, value-voting facilitates political representation by the Court. Second, policy motivation is essential to the effectiveness...

    • CHAPTER 5 The Virtues of Political Motive in Constitutional Decisionmaking: A Constrained and Consensus-Seeking Court
      (pp. 133-160)

      Value-voting is not merely the arbitrary expression of a justice’s idiosyncratic views. Rather, it is the expression and vindication of those political views deliberately “planted” on the Court by an ideology-conscious and politically accountable president and Senate. Thus, value-voting promotes political representation.

      However, additional democratic benefits flow from policy motivation on the part of Supreme Court justices. Policy-motivated justices must do more than merely vote their personal political preferences. They must be attentive as well to political checks on the Court and the political conditions necessary for policy success. Thus, as this chapter will argue, two additional and interrelated benefits...

    • CHAPTER 6 A Political Court and the “Crisis of Legitimacy”
      (pp. 161-188)

      One Of the primary arguments that conventional scholars invoke against the idea of political Court and policy-motivated justices is the “legitimacy crisis” that they believe will ensue. They argue that a political Court is more vulnerable to political attack and is likely to lose its legitimacy, the primary source of its power. The loss of its power in turn means the loss of the Court’s ability to carry out its specialized and valuable role. No longer will the Court be able to protect constitutional rights and liberties and politically vulnerable minorities from majoritarian attack. And no longer can the Court...

    • CHAPTER 7 Democratic Theory Revisited
      (pp. 189-225)

      Conventional legal scholars regard constitutional decisionmaking motivated by the personal political preferences of the justices as illegitimate and as precisely the evil to be avoided. Those personal views after all have not been tested in elections and approved by voters. Nor do voters have the opportunity to reject those views, and the justices who hold them, via electoral retribution. And when the Court rests a decision on the Constitution rather than a statute, not even a majority in the electorate or in Congress is capable of reversing it. As these scholars point out, that is certainly not what one would...

    • CHAPTER 8 Whither the Court and Constitution?
      (pp. 226-254)

      A likely response to the view of the Court as “just another political agency” is, why then should we bother with a Court or Constitution at all? Of what value is the Court or Constitution if constitutional decisionmaking is nothing more than the personal, idiosyncratic views of nine unelected, life-tenured judges? However, as previous chapters have shown, decisionmaking by policy- motivated, politically sensitive judges who are constrained by democratic forces is hardly the sort of idiosyncratic, democratically indefensible decisionmaking that we have been told to expect. Accordingly, the response of “Whither the Court and Constitution?” must be recast and the...

  7. NOTES
    (pp. 255-319)
    (pp. 320-358)
    (pp. 359-360)
  10. INDEX
    (pp. 361-371)