By Stephen M. Engel
Politicians have lengthy puzzled, or maybe been brazenly adversarial to, the legitimacy of judicial authority, yet that authority turns out to became safer over the years. What explains the recurrence of hostilities and but the safety of judicial strength? Addressing this question anew, Stephen Engel issues to the slow popularity of dissenting perspectives of the structure, that's, the legitimacy and loyalty of solid competition. Politicians' altering belief of the risk posed through competition encouraged how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced through the years, their procedure towards the judiciary - the place competition may perhaps turn into entrenched - replaced besides. as soon as competition used to be not visible as a primary chance to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial strength should be construed much less because the seat of an illegitimate competition and extra as an software to accomplish political ends. Politicians have been likely to harness it to serve their goals than to overtly undermine its legitimacy. briefly, conflicts among the elected branches and the judiciary haven't subsided. they've got replaced shape. they've got shifted from measures that undermine judicial legitimacy to measures that harness judicial energy for political ends. Engel's booklet brings our figuring out of those manipulations into line with different advancements, reminiscent of the institution of political events, the reputation of unswerving competition, the improvement of other modes of constitutional interpretation, and the emergence of rights-based pluralism.
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Additional info for American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power
First, the normative judicial supremacy thesis tends to deal with the vehemence of recent anti-court rhetoric by dismissing it as the clamoring of an impotent minority. It assumes attacks on judicial authority are insignificant if advocated actions are not followed through, for example, if judges are not impeached or jurisdiction-stripping legislation does not pass. In measuring success in this way, it does not examine the strategic purposes rhetoric serves. Rhetoric may have electoral value as symbolic position-taking.
By contrast, a longer time horizon afforded by a more historical study may demonstrate that rationality itself should not be held constant, and that rationality is, in fact, contextually contingent. See Ira Katznelson and Barry Weingast, “Intersections between Historical and Rational Choice Institutionalism,” in Preferences and Situations:Â€Points of Intersection between Historical and Rational Choice Institutionalism, Katznelson and Weingast, eds. (New York:Â€Russell Sage Foundation, 2005), 11.
See Ira Katznelson and Barry Weingast, “Intersections between Historical and Rational Choice Institutionalism,” in Preferences and Situations:Â€Points of Intersection between Historical and Rational Choice Institutionalism, Katznelson and Weingast, eds. (New York:Â€Russell Sage Foundation, 2005), 11. ” See “The History of Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy,” New York University Law Review 73 (May 1998), 333–433. “The History of the Countermajoritarian Difficulty, Part II:Â€Reconstruction’s Political Court,” Georgetown Law Review 91 (November 2002), 1–66; “The History of the Countermajoritarian Difficulty, Part III:Â€The Lesson of Lochner,” New York University Law Review 76 (November 2001), 1383–455; “The History of the Countermajoritarian Difficulty, Part Four:Â€Law’s Politics,” University of Pennsylvanian Law Review 148 (April 2000), 971–1064; “The Birth of an Academic Obsession:Â€The History of the Countermajoritarian Difficulty, Part Five,” Yale Law Journal 112 (November 2002), 153–259.