Open AccessPosted Content
Congress Before the Lochner Court
TLDR
The authors examines the political history of the judicial review of federal statutes by the Lochner Court, in particular between the years of 1890 and 1919, and suggests the extent to which the Court was operating in cooperation, rather than in conflict, with other national political officials during this period.Abstract:
This article examines the political history of the judicial review of federal statutes by the Lochner Court, in particular between the years of 1890 and 1919. In doing so, it situates this notorious Court within its political context and suggests the extent to which the Court was operating in cooperation, rather than in conflict, with other national political officials during this period. The article demonstrates that the invalidation of federal statutes rarely, if ever, pitted the Court against a clear majority of elected national officials. This article also exposes the more routine work that the Court does in exercising the power of judicial review, and suggests the value of that work.read more
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The Separation of Powers, Court Curbing, and Judicial Legitimacy
TL;DR: This article developed a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court, finding that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint.
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Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?
TL;DR: The authors explored three competing accounts of judicial review by comparing the enacting and invalidating coalitions for each of the fifty-three federal statutes struck down by the Supreme Court during its 1981 through 2005 terms.
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Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?
TL;DR: The Supreme Court's invalidation of democratically enacted statutes has been variously described as a tool of partisan entrenchment, a reflection of policy disagreement, and an expression of legal principle as mentioned in this paper.
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Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools
TL;DR: This article traced the development of a longstanding tradition of Supreme Court scholarship within political science (the "regime politics" literature) and its recent migration to the legal academy, focusing on recent books published by Michael Klarman, Mark Tushnet, and Jeffrey Rosen.
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In Defense of Progressive Legal Historiography
TL;DR: This paper surveys the debate between "progressives" and "revisionists" about the Constitution and constitutional interpretation during the late nineteenth and early twentieth centuries and argues that revisionists have made straw men out of the progressives, whose diversity and contributions they ignore, and that they have shown a lack of empathy for the circumstances facing the progressives.
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How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891
TL;DR: In this paper, a case study of latenineteenth century federal courts in the United States sheds light on two seemingly unrelated questions of general interest to political scientists: What tools are available to party leaders who seek to institutionalize their policy agendas or insulate those agendas from electoral politics? and how do we account for expansions of judicial power?