By Stephen M. Engel
Politicians have lengthy wondered, or perhaps been brazenly antagonistic 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 strong competition. Politicians' altering conception of the danger posed via competition encouraged how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced over the years, their procedure towards the judiciary - the place competition may perhaps develop into entrenched - replaced in addition. as soon as competition used to be now not obvious as a basic risk to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial strength will be construed much less because the seat of an illegitimate competition and extra as an software to accomplish political ends. Politicians have been prone to harness it to serve their goals than to brazenly undermine its legitimacy. in brief, 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 e-book brings our realizing of those manipulations into line with different advancements, akin to the institution of political events, the attractiveness of dependable competition, the advance 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
6 Bickel sought to curb anti-court hostilities by appealing to judges to exercise their “passive virtues” or their capacity to decide not to decide. 9 In practice, the Court is cowered into avoiding cases lest it suffer the angry hordes. Like Bickel’s solution, many other responses to the countermajoritarian problem seek to regulate judicial behavior. They rationalize review as essential for protecting minority rights, prescribe boundaries on its exercise, or even advocate popular review. 10 But the Court is not anomalous among governing institutions in its countermajoritarian impulse.
557 (2006), arguing that the Detainees Treatment Act removed jurisdiction on the question before the Court so the Court could not rule. S. 506 (1868) discussed in Chapter 5. See Calabresi and Lawson, “The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions:Â€A Textualist Response to Justice Scalia,” Columbia Law Review 107 (2007), 1002–47. â•‡ Tactical Measures Constituting an Attack on the Judiciary Traditional Definition Parsing the Traditional Definition Battery of Tactics Judicial impeachment Tampering with bench size Congressional override procedures Manipulating jurisdiction (stripping or transfer) Altering appointment/removal procedures Lowering the Court’s operational budget Refusal to raise judge’s salaries Altering the Court’s decision rules Eliminating/adding courts or judges Constitutional amendments overturning decisions Undermining Judicial Legitimacy Politically motivated judicial impeachment Altering the Court’s decision rules Congressional override procedures Lowering Court’s operational budget Refusal to raise judges’ salaries Eliminating courts or judges Ignoring the Court’s decisions* Decision and judicial recall Harnessing Judicial Power Tampering with bench size Manipulating jurisdiction (stripping or transfer) Altering appointment or removal procedures Adding courts or judges Filibustering judicial appointments* Presidential signing statements* *â•‡Ignoring the CourtÂ€– as was done by Jackson in the Cherokee decision or by massive Southern resistance to Brown v.
21 His claim that judges fall in line with the partisan leanings of the presidents who appoint them does not comport with either the failure of Nixon’s four appointments to shift the direction taken by the Science Review 99 (November 2005), 583–95; and J. Mitchell Pickerill and Cornell Clayton, “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2 (2004), 233–48. 17 Steven Teles, The Rise of the Conservative Legal Movement:Â€The Battle for Control of the Law (Princeton:Â€Princeton University Press, 2008), 11.