SUPREME COURT AND NATIONAL POLICY MAKING (FROM AMERICAN COURT SYSTEMS - READINGS IN JUDICIAL PROCESS AND BEHAVIOR, 1978, BY SHELDON GOLDMAN AND AUSTIN SARAT SEE NCJ-55128)

• NCJ Number: 55138
• Author(s): J D CASPER
• Date Published: 1978
• Length: 16 pages
• Corporate Author: W H Freeman and Co
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: REPRINTED FROM AMERICAN POLITICAL SCIENCE REVIEW, V 70 (1976), P 50-63

Annotation

THEORETICAL AND METHODOLOGICAL FLAWS IN A 1957 ARTICLE THAT HAS BEEN INFLUENTIAL IN THE DEBATE OVER THE ROLE OF THE U.S. SUPREME COURT IN NATIONAL POLICYMAKING ARE DISCUSSED.

Abstract

IN CONSIDERING THE RELATIVE POLICY INFLUENCE OF THE COURT VIS-A-VIS OTHER POLITICAL INSTITUTIONS, ROBERT A. DAHL ARGUED THAT THE COURT, WHILE AN ACTIVE PARTICIPANT IN AMERICAN POLITICS, DOES NOT PERFORM THE TASK OF PROTECTING FUNDAMENTAL RIGHTS THAT IS OFTEN ATTRIBUTED TO IT. DAHL ANALYZED THE DIRECTION, FREQUENCY, AND DECISIVENESS OF SUPREME COURT DECISIONS REGARDING THE CONSTITUTIONALITY OF FEDERAL LAWS FROM 1789 THROUGH 1957. HE CONCLUDED THAT, LIKE OTHER POLITICAL INSTITUTIONS, THE COURT IS PART OF A RULING COALITION, AND THAT ITS DECISIONS TYPICALLY SUPPORT POLICIES EMERGING FROM OTHER POLITICAL INSTITUTIONS. BUT APPLICATION OF DAHL'S DIMENSIONS IN AN ANALYSIS OF DECISIONS FROM 1958 THROUGH 1974 TENDS NOT TO SUPPORT HIS THESIS. A REVIEW OF DAHL'S TECHNIQUES REVEALS SHORTCOMINGS IN THE MANNER IN WHICH HE SELECTED AND USED HIS EVIDENCE. FOR INSTANCE, HE EXCLUDED FROM CONSIDERATION TWO IMPORTANT SUPREME COURT ACTIVITIES--INTERPRETATION OF FEDERAL STATUTES AND REVIEW OF CONSTITUTIONAL ISSUES ARISING FROM STATE AND LOCAL LAWS AND PRACTICES. THESE ACTIVITIES SEEM HIGHLY RELEVANT TO DETERMINING THE COURT'S ROLE IN NATIONAL POLICYMAKING. WHEN THEY ARE CONSIDERED, THE COURT'S ROLE APPEARS SUBSTANTIALLY MORE INFLUENTIAL THAN DAHL'S ARGUMENT ADMITS. ANOTHER PROBLEM LIES WITH THE RATHER NARROW VIEW OF POLICYMAKING THAT INFORMS DAHL'S ANALYSIS. IN CONCLUDING THAT THE COURT TYPICALLY DOES NOT PLAY A DECISIVE ROLE IN NATIONAL POLICYMAKING, DAHL SPEAKS IN TERMS OF INFLUENCE AND WIN-OR-LOSE CLASHES BETWEEN POLITICAL INSTITUTIONS. IT SEEMS MORE USEFUL TO CONSIDER THAT CONFLICTS BETWEEN POLITICAL INSTITUTIONS, SUCH AS THOSE BETWEEN COURTS AND LEGISLATURES, PRODUCE NOT WIN-OR-LOSE POLICIES, BUT RATHER TENTATIVE SOLUTIONS THAT THEMSELVES BECOME THE BASIS FOR FUTURE POLICYMAKING. SUPPORTING DATA ARE INCLUDED. (LKM)