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The Least Dangerous Branch: The Supreme Court at the Bar of Politics

TL;DR: In this article, the power of the Supreme Court and its relationship with other political institutions is examined, and specific cases which illustrate the relationship between the court and other institutions are discussed.
Abstract: Examines the power of the Supreme Court and cites specific cases which illustrate its relationship with other political institutions
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TL;DR: In this article, the authors develop an instrument for systematically assessing public accountability arrangements, drawing on three different normative perspectives: the democratic perspective, accountability should effectively link government actions to the democratic chain of delegation, the learning perspective, and the constitutional perspective.
Abstract: In recent years, there has been a drive to strengthen existing public accountability arrangements and to design new ones. This prompts the question whether accountability arrangements actually work. In the existing literature, both accountability ‘deficits’ and ‘overloads’ are alleged to exist. However, owing to the lack of a cogent yardstick, the debate tends to be impressionistic and event-driven. In this article we develop an instrument for systematically assessing public accountability arrangements, drawing on three different normative perspectives. In the democratic perspective, accountability arrangements should effectively link government actions to the ‘democratic chain of delegation’. In the constitutional perspective, it is essential that accountability arrangements prevent or uncover abuses of public authority. In the learning perspective, accountability is a tool to make governments effective in delivering on their promises. We demonstrate the use of our multicriteria assessment tool in an analysis of a new accountability arrangement: the boards of oversight of agencies.

440 citations

Journal ArticleDOI
TL;DR: In this article, the authors argue that integration through law does have a liberalizing and deregulatory impact on the socioeconomic regimes of European Union member states, but this effect is generally compatible with the status quo in liberal market economies, but it tends to undermine the institutions and policy legacies of Continental and Scandinavian social market economies.
Abstract: Judge-made law has played a crucial role in the process of European integration. In the vertical dimension, it has greatly reduced the range of autonomous policy choices in the member states, and it has helped to expand the reach of European competences. At the same time, however, ‘integration through law’ does have a liberalizing and deregulatory impact on the socio-economic regimes of European Union member states. This effect is generally compatible with the status quo in liberal market economies, but it tends to undermine the institutions and policy legacies of Continental and Scandinavian social market economies. Given the high consensus requirements of European legislation, this structural asymmetry cannot be corrected through political action at the European level.

435 citations

Journal ArticleDOI
TL;DR: In this article, the authors argue that presidents have incentives to push this ambiguity relentlessly to expand their own powers and that, for reasons rooted in the nature of their institutions, neither Congress nor the courts are likely to stop them.
Abstract: In this article we highlight a formal basis for presidential power that has gone largely unappreciated to this point, but has become so pivotal to presidential leadership and so central to an understanding of presidential power that it virtually defines what is distinctively modern about the modern presidency. This is the president’s formal capacity to act unilaterally and thus to make law on his own. Our central purpose is to set out a theory of this aspect of presidential power. We argue that the president’s powers of unilateral action are a force in American politics precisely because they are not specified in the Constitution. They derive their strength and resilience from the ambiguity of the contract. We also argue that presidents have incentives to push this ambiguity relentlessly to expand their own powers—and that, for reasons rooted in the nature of their institutions, neither Congress nor the courts are likely to stop them. We are currently in the midst of a research project to collect comprehensive data for testing this theory—data on what presidents have done, as well as on how Congress and the courts have responded. Here we provide a brief history of unilateral action, with special attention to the themes of our theoretical argument. We also make use of some early data to emerge from our project. For now it appears that the theory is well supported by the available evidence. This is a work in progress, however, and more is clearly needed before definitive conclusions can be justified. A few observations about politics are so widely accepted that virtually all political scientists have committed them to memory. One of these is Richard Neustadt’s (1960) famous dictum, “Presidential power is the power to persuade,” which expresses, in shorthand form, his view that the powers of the modern American presidency are rooted in the personal qualities of the individual occupying the office—in his skills, his temperament, and his experience. This notion of the personal presidency dominated the field for decades, but its influence is on the decline. The main reason is that it seems increasingly out of sync with the facts. The personal presidency became a popular theoretical notion just as the American presidency was experiencing tremendous growth c

287 citations


Cites background from "The Least Dangerous Branch: The Sup..."

  • ...Legal scholars have long recognized that the Court cannot simply act on principle and let the chips fall where they may, for this sort of strategy would ultimately prove self-destructive (e.g., Bickel, 1962)....

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Journal ArticleDOI
TL;DR: Theoretical and descriptive studies of the Supreme Court exhibit a curious parallel. as mentioned in this paper argues that independent judicial policymaking is rarely legitimate in a democracy because, with few exceptions, elected officials rather than appointed judges should resolve social controversies.
Abstract: Theoretical and descriptive studies of the Supreme Court exhibit a curious parallel. Both usually begin from the premise that judicial review is “a deviant institution in a democratic society.” Much normative work claims that independent judicial policymaking is rarely legitimate in a democracy because, with few exceptions, elected officials rather than appointed judges should resolve social controversies. In a frequently cited passage, Alexander Bickel asserts that the Supreme Court is “a counter-majoritarian force” in our system of government. Much empirical work, by comparison, insists that independent judicial policymaking seldom takes place in a democracy because, with few exceptions, judges appointed and confirmed by elected officials sustain whatever social policies are enacted by the dominant national coalition. Robert Dahl observes that it is “unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite.”

285 citations

Journal ArticleDOI
TL;DR: A legal model with variables that me the prior justification of the search, the nature of the intrusion, and a few mitigating circumstance used to explain the Court's decisions on the reasonableness of a given search or seizure was proposed in this paper.
Abstract: The overwhelming concensus of Fourth Amendment scholars is that the Supreme Court's sea and seizure cases are a mess. This article proposes that the confusion arises from the manner in which the cases were studied, not from the decisions themselves. A legal model with variables that me the prior justification of the search, the nature of the intrusion, and a few mitigating circumstance used to explain the Court's decisions on the reasonableness of a given search or seizure. The parameters are estimated through probit.The results show that the search and seizure cases are much more ordered than had commonly been believed. Virtually all of the estimates are as expected. Additionally, the Court is shown to act favorably toward the federal government than toward the states. Preliminary analysis suggests the model has predictive as well as explanatory value.

269 citations