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The U.S. Supreme Court Is Not a Dahlian Court

Published online by Cambridge University Press:  26 August 2022

Paul Baumgardner Open the ORCID record for Paul Baumgardner [Opens in a new window]  and
Calvin TerBeek
Paul Baumgardner*
Affiliation:
Department of Political Science, Augustana College, Rock Island, Illinois, USA
Calvin TerBeek*
Affiliation:
Department of Political Science, Johns Hopkins University, Baltimore, Maryland, USA
*
Corresponding author: Paul Baumgardner, Email: paulbaumgardner@augustana.edu and Calvin TerBeek, Email: cterbeek@jhu.edu
Corresponding author: Paul Baumgardner, Email: paulbaumgardner@augustana.edu and Calvin TerBeek, Email: cterbeek@jhu.edu
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Abstract

Robert Dahl's “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” has long enjoyed pride of place within American politics scholarship, especially among regime theorists. However, Dahl's views of the U.S. Supreme Court are no longer defensible. It is essential for our field to move beyond “Decision-Making in a Democracy” in order to better theorize and explain the modern Supreme Court.

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Type
Research Article
Information
Studies in American Political Development , Volume 36 , Issue 2 , October 2022 , pp. 148 - 150
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press

Sixty-five years after it was first published, Robert Dahl's “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” remains a canonical piece of American politics scholarship.Footnote 1 It is regularly assigned in graduate classes, is cited favorably in academic work, and still provides a common template for news outlets’ characterization of the U.S. Supreme Court. Additionally, the core claims of “Decision-Making in a Democracy” have proven particularly influential within American political development (APD) scholarship that has sought to demonstrate the majoritarian nature of the Supreme Court across different regimes in American history.

In this article, we return to Dahl's core claims and explain why they fail to address the political party dynamics, interbranch relations, social movement advances, and ideological developments that have fundamentally reshaped the Supreme Court over the past generation. We conclude with a note on why APD scholars have a theoretical and empirical imperative to think anew about the contemporary Supreme Court. This empowered modern institution exists outside of Dahl's dominant national alliances framework, is only loosely constrained by national executive and legislative objectives, and is run by justices who wield remarkable power over American law and public policy.

1. Dominant National Alliances and the Supreme Court

In “Decision-Making in a Democracy,” Dahl argues that the Supreme Court represents a political institution that plays a key, if circumscribed, role in national policymaking. Within the national government, “the main objective” of the president is to construct a solid “lawmaking majority” with Congress.Footnote 2 This lawmaking majority sets down a policy agenda, which orients the decision-making of Supreme Court justices. “The fact is, then, that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.” Thus, Dahl continued, “it would be most unrealistic to suppose that the Court would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.”Footnote 3

Together, the Supreme Court and the lawmaking majority constitute a “dominant national alliance.” The central function of the Court within this alliance is to legitimize the lawmaking majority's policies. Although the Court cannot independently set national policy, it does possess the ability to contour and improve the alliance's policies in order to advance the alliance's political goals. But Dahl is clear that “by itself, the Court is almost powerless to affect the course of national policy. In the absence of substantial agreement within the alliance, an attempt by the Court to make national policy is likely to lead to disaster.”Footnote 4

As the composition of the national government changes, so do the actions and allegiances of the Supreme Court. “Decision-Making in a Democracy” evinces a certainty that rotating legislative majorities and presidential turnover will not hinder the succession of dominant national alliances, nor will the intermittent personnel changes within the Supreme Court. The president has a political responsibility to build a lawmaking majority, which will pursue a broad set of policies and seek to entrench a new political program for the nation. And “the Supreme Court is inevitably a part of the dominant national alliance,” tasked with wielding its constitutional powers to further the alliance's farsighted agenda.Footnote 5 Dahl holds that the evolving set of dominant national alliances are the true epoch makers in American politics, the ultimate decision-makers in our democracy.Footnote 6

2. The Limits of Regime Politics

When “Decision-Making in a Democracy” was published in 1957, its core claims seemed obviously true. A liberal consensus looked secure within the federal government, and it appeared as if the Supreme Court was acting within its proper institutional province: cementing into law—especially constitutional law—those policies that the New Deal coalition had determined were important national goals.Footnote 7 Contrary to the wisdom of leading law professors, the Court was not a counter-majoritarian institution, but one that performed the necessary legal tasks to legitimate the policy agenda of the dominant national alliance.Footnote 8

But even after the New Deal coalition faded, “Decision-Making in a Democracy” maintained its influence. In fact, Dahl's view of the Supreme Court has come to represent a “master theory,” especially for those interested in law and APD.Footnote 9 Since the 1990s, regime theorists within APD often have built explicitly on Dahl's work.Footnote 10 Both Dahl and regime theorists have highlighted an important truth: the Court is thoroughly political. These scholars’ work has been vital to discrediting the longstanding idea that constitutional law is created by arriving at the best available answers using purely legal and apolitical modes of reasoning. Regime theorists have explained how conservative judicial activism materialized,Footnote 11 demonstrated that partisan coalitions often want state and federal courts to sculpt policy on certain issues,Footnote 12 and shown that presidents can shape the Court according to near- and medium-term political goals.Footnote 13

Most importantly, many regime theorists have followed Dahl in arguing that the Supreme Court is an essentially majoritarian institution.Footnote 14 Although dominated by Republican-appointed justices, the Court was said to be pluralistic and committed to upholding the views of the political majority, especially on salient cultural issues.Footnote 15 This was why Roe v. Wade and Planned Parenthood v. Casey continued to survive, why LGBTQ rights gained the Court's imprimatur, and why states’ aggressive death penalty laws were weakened.

But history has pushed past this Dahlian view of the Supreme Court, such that it now offers an unrealistic conception of the Court, its relationship to the other branches of the national government, and the dominant alliances actually driving our judicial politics. As our politics have become more conflictual and ideologically polarized, the limited reach of “Decision-Making in a Democracy” and of regime theory has been thrown into sharp relief. Dahl and regime theorists have explicated the judicial politics of New Deal liberalism reasonably well, but they have not put forward a view of judicial politics that accurately describes our current age.

Beyond recognizing LGBTQ rights and death penalty limitations, the past thirty years of Supreme Court decisions have amounted to a conservative rout, despite this period witnessing several Democratic Party–controlled presidencies and Congresses. In addition to effectively determining the 2000 presidential election via Bush v. Gore, the Rehnquist Court issued landmark states’ rights decisions, reduced the scope of affirmative action, expanded the purview of the takings clause, and declared that the days of (liberal) rights creation were over. As Congress became more and more “overwhelmed” and unable to legislate effectively, the Rehnquist Court flexed its institutional muscles. The Court redetermined national policy boundaries, set the precedential groundwork for a fully conservative Court to build on, and laid claim to a wide swath of policy terrain the Court deemed rightfully theirs.Footnote 16

The Roberts Court has been even more forward looking than its predecessor. The Court has expanded the constitutional rights favored by conservatives, while reining in those aspects of the administrative state that conservatives dislike. Since 2005, the Court has done away with campaign finance regulations, transformed the First Amendment into a deregulatory tool, toppled the leadership structure of the Consumer Financial Protection Bureau, legitimated the constitutional claims of gun rights advocates, given broad latitude to religious conservatives’ cultural concerns and liberty assertions, struck down abortion rights, and is poised to hollow out affirmative action programs in higher education.

These judicial developments are not the product of a Dahlian court bound to the policy agenda of a stable lawmaking majority.Footnote 17 Today's Supreme Court is not a Dahlian court, and it is not part of a dominant national alliance. Instead, it is allied to a specific political project set forth by modern movement conservatism. As that project comes to thoroughly dominate American judicial politics, there is no reason to believe that the Supreme Court will slow down in its mission to thwart liberal initiatives, stymy Democratic Party policy objectives, and generally achieve as much as it can to further movement conservatives’ policy goals.Footnote 18

Dahl argues that justices should act in a manner consistent with the lawmaking majority and rubberstamp this regnant coalition's agenda. But the ideological intensity of each justice is not central to Dahl's argument; only their regime solidarity and political utility is relevant. Dahl's “Decision-Making in a Democracy” does not point to which Supreme Court justices will be ideologically extreme. But, as we know, not all justices are regime builders or aggressive partisans seeking to further a unified, interbranch coalition agenda. And even for those who are, they certainly are not partisan to the same degree as one another.

Similarly, regime theory has a difficult time squaring its theoretical expectations of interbranch accountability and policy feedback with the empirics of recent judicial politics. For instance, it cannot explain why Chief Justice Roberts is considered a major disappointment to many national Republican leaders, why prayers have rung out at Federalist Society conferences against another Republican justice (Justice David Souter) appointed by a Republican president, or even why an archconservative justice (Justice Clarence Thomas) appointed by a Republican president typifies a black nationalist “enigma” with political views out of step with GOP officials.Footnote 19 The current Roberts Court is not directly accountable to a Republican regime of national executive and legislative officials, and the choices that the Court makes when exercising its broad lawmaking and policymaking powers are not determined by any such chimera.

3. The Path Forward

Dominant national alliances do not dictate our judicial politics today, and Dahlian courts do not exist today. Moreover, patiently waiting for a return of Dahlian courts that reinforce majoritarian policy goals does not seem promising. Continuing to hold out the theoretical hope of a new rotating political majority arising and building a dominant national alliance with the Supreme Court simply does not meet our political moment.

This new age of judicial politics invites theory building. Dahl's “Decision-Making in a Democracy” has not proven to be a master theory capable of explaining the Supreme Court's political role in the United States over the past generation. But rather than devising a new master theory of the Court's role throughout American history, we should build on the valuable and diverse conceptual research started by some APD scholars, who are exploring the diminishing access to federal courts,Footnote 20 the limits of judicial backlash,Footnote 21 and the centrality of conservative lawyers and legal institutions to legal change.Footnote 22 More scholars should take notice of how peculiar movements and ideologues are gaining power over our judicial politics and begin investigating where the Supreme Court is placing itself across various policymaking domains.

New political party dynamics, interbranch relations, social movement advances, and ideological developments are reshaping the Supreme Court before our eyes. But how, and into what new shape? It is inadequate to merely acknowledge that the Supreme Court is not a Dahlian court. We need to pay attention to what kind of institution the Court is becoming.

Acknowledgments

We would like to thank the editors and reviewers of Studies in American Political Development for their advice and guidance.

Competing interests

The authors declare none.

References

1 Dahl, Robert A., “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 279–95Google Scholar.

2 Ibid., 284, 294.

3 Ibid., 285.

4 Ibid., 293.

5 Ibid.

6 Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics (New York: W.W. Norton, 1970).

7 On the strength of the liberal consensus in the 1950s, see Morton White, Social Thought in America: The Revolt Against Formalism (Boston: Beacon Press, 1957); Lionel Trilling, The Liberal Imagination (New York: NYRB Books, 2008; originally published 1950); Jennifer Delton, Rethinking the 1950s: How Anticommunism and the Cold War Made America Liberal (New York: Cambridge University Press, 2013); Steven Teles, The Rise of the Conservative Legal Movement (Princeton, NJ: Princeton University Press, 2008).

8 Alexander Bickel, The Least Dangerous Branch (Indianapolis, IN: Bobbs-Merrill, 1962). Barry Friedman's exhaustive five-part series is a useful intellectual history of the “counter-majoritarian difficulty” that Bickel identified. See, e.g., Friedman, Barry, “The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five,” Yale Law Journal 112 (2002): 153–259CrossRefGoogle Scholar.

9 Hacker, Jacob and Pierson, Paul, “After the ‘Master Theory’: Downs, Schattschneider, and the Rebirth of Policy-Focused Analysis,” Perspectives on Politics 12 (2014): 643–62CrossRefGoogle Scholar.

10 See, e.g., Ronald Kahn and Ken Kersch, eds., Law and American Political Development (Lawrence: University Press of Kansas, 2006); Frymer, Paul, “Law and American Political Development,” Law & Social Inquiry 33(2008): 779–803CrossRefGoogle Scholar.

11 Thomas Keck, The Most Activist Court in History: The Road to Modern Judicial Conservatism (Chicago: University of Chicago Press, 2004).

12 Graber, Mark, “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7(1993): 35–72CrossRefGoogle Scholar; Gillman, Howard, “How Political Parties Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” American Political Science Review 96 (2002): 511–24CrossRefGoogle Scholar.

13 Kevin McMahon, Reconsidering Roosevelt on Race (Chicago: University of Chicago Press, 2010); Keith Whittington, Political Foundations of Judicial Supremacy (Princeton, NJ: Princeton University Press, 2008).

14 See, e.g., Graber, “The Non-Majoritarian Difficulty”; Keith Whittington, Repugnant Laws: Judicial Review of Congress from the Founding to the Present (Lawrence: University Press of Kansas, 2019).

15 Thomas Keck, Judicial Politics in Polarized Times (Chicago: University of Chicago Press, 2014).

16 Timothy La Pira, Lee Drutman, and Kevin Kosar, eds., Congress Overwhelmed: The Decline in Congressional Capacity and Prospect for Reform (Chicago: University of Chicago Press, 2020).

17 Frances Lee, Insecure Majorities: Congress and the Perpetual Campaign (Chicago: University of Chicago Press, 2016).

18 Jacobs, Nicholas F., King, Desmond and Milkis, Sidney M., “Building a Conservative State: Partisan Polarization and the Redeployment of Administrative Power,” Perspectives on Politics 17 (2019): 453–69CrossRefGoogle Scholar.

19 Bill Pryor, “The Supreme Court as Guardian of Federalism,” Federalist Society for Law & Public Policy Studies, July 11, 2000, https://web.archive.org/web/20030803105145/http:/www.ago.state.al.us/speeches.cfm?Item=Single&Case=8; Corey Robin, The Enigma of Clarence Thomas (New York: Metropolitan Books, 2019).

20 Sarah Staszak, No Day in Court: Access to Justice and the Politics of Judicial Retrenchment (New York: Oxford University Press, 2015); Stephen B. Burbank and Sean Farhang, Rights and Retrenchment: The Counterrevolution against Federal Litigation (New York: Cambridge University Press, 2017).

21 Rubin, Ruth Bloch and Elinson, Gregory, “Anatomy of a Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954–1958,” Law & Social Inquiry 43 (2018): 944–80CrossRefGoogle Scholar.

22 Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015); Ann Southworth, Lawyers of the Right: Professionalizing the Conservative Coalition (Chicago: University of Chicago Press, 2008); TerBeek, Calvin, “‘Clocks Must Always Be Turned Back’: Brown v. Board of Education and the Racial Origins of Constitutional Originalism,” American Political Science Review 115 (2021): 821–34CrossRefGoogle Scholar; Baumgardner, Paul, “‘Something He and His People Naturally Would Be Drawn To’: The Reagan Administration and the Law-and-Economics Movement,” Presidential Studies Quarterly 49 (2019): 959–75CrossRefGoogle Scholar; Daniel Bennett, Defending Faith: The Politics of the Christian Conservative Legal Movement (Lawrence: University Press of Kansas, 2017); Amanda Hollis-Brusky and Joshua C. Wilson, Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture (New York: Oxford University Press, 2020); Ken I. Kersch, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (New York: Cambridge University Press, 2019).