American Politicians Confront the Court
Opposition Politics and Changing Responses to Judicial Power

Engel examines changing politicians' perceptions of the threat posed by opposition and how it influenced manipulations of judicial authority.

Stephen M. Engel (Author)

9780521153980, Cambridge University Press

Paperback, published 13 June 2011

408 pages, 5 b/w illus. 3 tables
23.6 x 15.7 x 2.3 cm, 0.58 kg

“How is it that American courts could be such a regular target of political attack and yet remain so seemingly invulnerable to those attacks? Stephen Engel offers compelling evidence demonstrating that, far from seeking to destroy or eradicate the courts, politicians on both sides of the ideological divide have come to understand that the courts are a powerful tool. Their attacks are now crafted to push and pull the courts to serve the politicians’ policy goals, rather than to block or undermine judicial power.”
– Gordon Silverstein, University of California, Berkeley

Politicians have long questioned, or even been openly hostile to, the legitimacy of judicial authority, but that authority seems to have become more secure over time. What explains the recurrence of hostilities and yet the security of judicial power? Addressing this question anew, Stephen Engel points to the gradual acceptance of dissenting views of the Constitution, that is, the legitimacy and loyalty of stable opposition. Politicians' changing perception of the threat posed by opposition influenced how manipulations of judicial authority took shape. Engel's book brings our understanding of these manipulations into line with other developments, such as the establishment of political parties, the acceptance of loyal opposition, the development of different modes of constitutional interpretation and the emergence of rights-based pluralism.

1. Introduction: had Americans 'stopped understanding about the three branches'?
Part I. Political Development and Elected-Branch Relations with the Judiciary: 2. Beyond the countermajoritarian difficulty
3. A developmental theory of political manipulation of judicial power
Part II. Hostility to Judicial Authority and the Political Idiom of Civic Republicanism: 4. In the cause of unified governance: undermining the court in an anti-party age
5. Party against partisanship: single-party constitutionalism and the quest for regime unity
6. 'As party exigencies require': republicanism, loyal opposition, and the emerging legitimacy of multiple constitutional visions
Part III. Harnessing Judicial Power and the Political Idiom of Liberal Pluralism: 7. Clashing progressive solutions to the problem of judicial authority
8. In a polity fully-developed for harnessing (I): living constitutionalism and the policization of judicial appointment
9. In a polity fully-developed for harnessing (II): a conservative insurgency and a self-styled majoritarian court responds
10. Conclusion: on the 'return' of opposition illegitimacy and the prospects for new development.

Subject Areas: Constitutional & administrative law [LND], Legal history [LAZ], Constitution: government & the state [JPHC]