The Supreme Court in Politics

The U.S. Supreme Court is an important political institution. Nonetheless, general political histories of the United States give little attention to the Court and its justices. The appointment of justices and the decisions of courts are mere footnotes, at best, in the history of presidential administrations. Perhaps this reflects the relative insignificance of the judiciary and its actions on the broader political stage. The work of the Court pales in comparison with wars, elections, and legislative struggles. The history of the Court has instead been relegated to more specialized accounts. Often those accounts were written from a primarily legal perspective or framed in terms of a history of constitutional law. The relationship between politics and the judiciary was pushed into the background.

For many years, the classic one-volume history of the Court has been Robert G. McCloskey’s The American Supreme Court (5^th ed., revised by Sanford Levinson, 2010). Originally published in 1960, The American Supreme Court situated the history of the Court within politics. McCloskey’s concern was to describe the Court as an “agency in the American governing process, an agency with a mind and a will and an influence of its own,” which used the law to achieve or try to achieve results (p. xv). The Harvard political scientist hoped to set aside the legalistic suggestion that the justices were primarily working out the logic of the law. The justices had agency in determining the course of public policy, and the Court was an agency within the structure of the government that made and implemented policy. The Court’s power was both real and fragile. The Court’s story, according to McCloskey, could “be broadly understood as an endless search for a position in American government that is appropriate” to the political era and the “subtle limits of judicial capability” (p. 15). A central lesson of his account, he concluded, was that the historical Court had been “fully alive to such realities as the drift of public opinion and the distribution of power in the American republic” (p. 246). The point was not that the justices “slavishly” adjusted themselves to public opinion or the powerful actors around them but that they “seldom lagged far behind or forged far ahead of America” (p. 247).

McCloskey’s general perspective on the Court as a political institution that was historically configured and responsive to the interests and views of other political actors has found resonance in a subsequent literature.¹ In 1957, the Yale political scientist Robert Dahl published a study arguing that the Supreme Court had rarely exercised the power of judicial review in a way that obstructed current legislative majorities on important public policies. He attributed the Court’s docility to the political appointments process, which had tended to keep the majority of the justices aligned with dominant national coalitions over much of American history.² Over the past fifteen years or so, a growing literature has developed and emphasized these themes. Variously known as the neo-Dahlian or political regimes’ literature, a variety of scholars have explored the ways in which the Court operates within the constraints of the political environment and constitutional law is shaped by the matrix of ideas and interests surrounding the justices.³ Although Dahl’s article was analytically sharper and driven by a stronger thesis than McCloskey’s book, it was also substantively spare.⁴ McCloskey’s rich narrative was less focused than Dahl’s was on demonstrating the single point that the Court operated within the political mainstream or with establishing a dominant mechanism by which politics influenced the Court, and this made his work less fertile for social scientists. But McCloskey shared a sensibility with the later political regimes’ literature that the Court contributed actively to American constitutional development, helping to construct a constitutional edifice that the Founders had only partly started. In doing so, the justices were operating in an environment crowded with ideas and actors and...