- First Amendment Doctrine as Regime Politics
In my work lately I have been considering whether we can get a better perspective on constitutional development and Supreme Court decision making by placing the Court and its policies/doctrines/interpretations in the larger context of "regime politics."1 I have no technical definition of regime politics; I am just referring to the various ways in which governing coalitions organize their power and advance their political agenda within a system of institutions. Within the political science literature I am using the work of Robert Dahl and Martin Shapiro as points of departure, and the "new institutionalism" literature as a template.2
From the point of view of governing coalitions, courts can be seen as similar to executive branch agencies. What these institutions have in common is that they are staffed by politically-appointed office holders who have policy-making responsibilities over issues that are of interest to party leaders and their constituents. This means that there is a routine and ongoing interest in shaping the "decision-making bias" of these institutions. The main differences between these institutions are that courts (a) have much more political insulation (and thus decision-making independence) and (b) have much broader policy-making jurisdiction. Of course, courts and agencies also generate different internal institutional norms that may impose different constraints or institutional viewpoints upon officeholders.
What can be done with this starting point? In some recent essays I have tried to examine certain periods in American constitutional development that are best understood as the by-product of "partisan entrenchment," that is, an effort on the part of the President and Senate leaders to protect a potentially vulnerable political agenda by shaping the decision-making bias of the federal judiciary (and especially the Supreme Court). The two case studies I have looked at so far relate to the post-Reconstruction efforts of the Republican Party to promote an agenda of conservative economic nationalism, and the efforts of Democratic leaders in the 1960s to reshape the federal judiciary so that it reflected the values of the Great Society.3 The point would be to see whether certain developments in constitutional law can be traced, not just to the individual policy preferences of judges, but to the agendas of political parties.
In other words, when we think about the Lochner era, it may be more useful to think a little less about the specific jurisprudence and life histories of the individual justices and more about the attitudes of the post-Reconstruction Republican Party about how courts fit into their general agenda. This echoes Lucas Powe's point that the Warren Court is better seen as politically constructed to be a functioning partner in the promotion of the Great Society rather than as a creature of judicial whimsy.4 All of this is linked to other work on what might be called "the political construction of judicial power."5
This effort to tie developments in constitutional law to politics outside the Court works best when one can show that governing coalitions have an interest in a specific area of constitutional decision making. There is good evidence that post-Reconstruction Republicans cared about the treatment received by national corporations in the judiciary (after all, they changed the federal judiciary's jurisdiction making it possible to remove cases from state courts into the federal courts) and about the larger legal-constitutional context for the development of a national industrial economy. There is good evidence that Johnson cared about having the courts there to protect/promote a civil rights agenda.
On the other hand, courts have very broad policy-making jurisdiction, and so it is inevitable that judges will be addressing issues that were of very low salience to the policy-conscious party leaders who selected them. When this happens, how accurate is it to attribute the constitutional decision making to partisan entrenchment, or to some other extra-judicial feature of regime politics?
Constitutional law governing free speech may be a useful focal point for this question. There is little evidence that Supreme Court appointments in the twentieth century have been driven specifically by a governing coalition's interest in advancing a...