The Supreme Court and Political Eras: A Perspective on Judicial Power in a Democratic Polity

1992 ◽  
Vol 54 (3) ◽  
pp. 345-368
Author(s):  
John B. Taylor

American political history is often conceived as a series of stable eras, controlled by dominant party coalitions and demarcated by realigning elections, most often identified as those of 1828, 1860, 1896, and 1932. Since there is a lag in the corresponding reconstitution of the Supreme Court, it is often deemed a countermajoritarian drag on the workings of electoral democracy. An examination of judicial review in relation to political eras shows that view to be correct only in the New Deal era. Judicial review most commonly occurs within eras rather than across them, with a Court reconstituted by the prevailing coalition negating legislation passed by that coalition. This reality significantly alters the normative question of the Court's role in a democracy, and it raises questions about the concept of stable eras. The current trend of political party dealignment calls into question the continuing validity of the critical-elections approach.

Author(s):  
Randy E. Barnett

This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth Amendment. The era in which the Supreme Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. The doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. The chapter first provides an overview of Footnote Four before discussing the Ninth Amendment, which mandates that unenumerated rights be treated the same as those that are listed. It shows that Footnote Four runs afoul of the text of the Constitution, and more specifically the Ninth Amendment.


1945 ◽  
Vol 39 (1) ◽  
pp. 54-61
Author(s):  
Oliver P. Field

The paragraphs that follow answer the same questions with respect to unconstitutional legislation by Congress that were answered with respect to unconstitutional legislation in the ten states (Colorado, Massachusetts, New Hampshire, Minnesota, Wisconsin, North Dakota, South Dakota, Illinois, Indiana, and New York) included in my study published in 1943 under the title, Unconstitutional Legislation in Ten Selected States. The congressional statutes and the decisions of the Supreme Court analyzed herein are based upon the list found in Professor Charles Grove Haines, The Doctrine of American Judicial Supremacy. The reason why this list was chosen as the basis for analysis was that it covers approximately the same period, namely, from the beginnings to the early thirties, not including the period of the New Deal which formally began in 1933. This does not mean that there is no point in analyzing the later statutes and decisions, but that for purposes of comparison it was thought safer to restrict this analysis to the same general period for both state and national materials. The three cases under No. 1 in the Haines list have been omitted because no decrees based on invalidity followed their decision.


Thought ◽  
1941 ◽  
Vol 16 (3) ◽  
pp. 582-582
Author(s):  
Walter B. Kennedy ◽  

1937 ◽  
Vol 31 (2) ◽  
pp. 253-279
Author(s):  
Robert E. Cushman

As was pointed out a year ago in this Review, the Supreme Court was able to deal with the cases involving the New Deal which came before it during its 1934 term without any striking enlargement of judicial power and without the announcement of any novel constitutional doctrine. The N.R.A., the Gold Clauses, the Farm Bankruptcy Act, were dealt with by the familiar processes of deciding whether Congress had actually exercised a power not granted to it by the Constitution, or had exercised a granted power in a forbidden way. The New Deal issues which came to the Court during the 1935 term were quite as far-reaching in significance and were certainly not of a routine variety. They involved, in some cases, constitutional clauses never before interpreted by the Court. Some of the federal laws under attack were obviously exercises of delegated powers, but at the same time, they exercised delegated powers for purposes which were novel and which had been commonly supposed not to be within the reach of federal authority. In dealing with laws of this type, the Court brought forward and established as a working implement of constitutional construction the so-called doctrine of “dual federalism.”


Author(s):  
Víctor J. Vázquez Alonso

En este trabajo se lleva a cabo una aproximación a la evolución del Estado Social en el Federalismo americano, destacando el papel que ha tenido en la misma el Judicial Review. Para ello, primeramente, se estudiarán las causas del denominado excepcionalismo americano, en lo referido a la falta de consagración constitucional de los derechos sociales. Se estudiarán aquí los frustrados intentos de la Corte Suprema de dotar de eficacia a ciertos derechos sociales a partir de la Enmienda Catorce. Una vez señalada esta excepción americana, se analizará cómo la construcción de un estado del bienestar en los Estados Unidos, desde el New Deal hasta nuestros días, ha ido de la mano de una interpretación de las categorías del federalismo favorable a los poderes del Congreso. Del mismo modo, se llamará la atención sobre las limitación que tienen los jueces estatales para dar eficacia a los derechos sociales de sus constituciones y de cómo a nivel estatal, se abre paso la idea de reformular la función judicial cuando se trata de aplicar disposiciones de carácter social que exigen políticas públicas. Finalmente, y a la luz de la última jurisprudencia de la Corte Suprema, se insistirá en la necesaria deferencia judicial que reclaman las leyes estatales que sobre una interpretación concreta del federalismo implementan nuevas facetas del bienestar social.This paper addresses the evolution of the Welfare State in American Federalism, highlighting the role played by Judicial Review. With such an aim, we first study the causes of the so-called «American Exceptionalism», in reference to the lack of constitutional enforcement of social rights. Concretely, we will focus on the frustrated attempts of the Supreme Court to give efficacy to certain social rights through the Fourteenth Amendment of the Federal Constitution. Once this exception and its reasons are fully acknowledged, we are able to discuss how the construction of the welfare state in the United States, since the New Deal to the present day, has been accompanied by an interpretation of Federal categories very favourable to the powers of the National Congress. Similarly, we will analyse the limitations that state judges have when enforcing social rights protected in state constitutions as well as the current debate taking place at the state level regarding possible reformulations of the judicial function when it comes to implement provisions of social nature that require public policies. Finally, and in light of the recent case law of the Supreme Court, we will insist on the necessary judicial deference in cases in which Federal categories are used to implement new welfare goals.


2005 ◽  
Vol 23 (2) ◽  
pp. 451-458
Author(s):  
Michele Landis Dauber

Howard Gillman is unconvinced by my argument that New Deal lawyers turned to the history of federal disaster relief in support of key spending measures, such as the Social Security Act. Likewise, he is unpersuaded by Justice Stone's suggestion to Frances Perkins that she could “do anything under the taxing power.” I understand why Stone's comment grates on Gillman's modern ear; it grated on mine too. What is Stone talking about, and how could his comment be squared with our understanding of the pre–New Deal period as one of sharp limits to federal power imposed by the courts? Gillman's conviction that, in this era, the Supreme Court exercised substantial veto power over federal spending leads him to some critical misreadings of key cases and misstatements of fact. I appreciate the opportunity to respond to his comments and, in particular, to include some details regarding Supreme Court developments for which there was no space in the article itself.


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