By Stephen M. Engel
Politicians have lengthy puzzled, or maybe been overtly adverse to, the legitimacy of judicial authority, yet that authority turns out to became safer over the years. What explains the recurrence of hostilities and but the protection of judicial energy? Addressing this query anew, Stephen Engel issues to the sluggish reputation of dissenting perspectives of the structure, that's, the legitimacy and loyalty of reliable competition. Politicians' altering notion of the risk posed through competition inspired how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced over the years, their method towards the judiciary - the place competition might turn into entrenched - replaced to boot. as soon as competition used to be now not visible as a primary risk to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial strength will be construed much less because the seat of an illegitimate competition and extra as an tool to accomplish political ends. Politicians have been prone to harness it to serve their goals than to overtly undermine its legitimacy. in brief, conflicts among the elected branches and the judiciary haven't subsided. they've got replaced shape. they've got shifted from measures that undermine judicial legitimacy to measures that harness judicial strength for political ends. Engel's e-book brings our knowing of those manipulations into line with different advancements, resembling the institution of political events, the recognition of dependable competition, the advance of other modes of constitutional interpretation, and the emergence of rights-based pluralism.
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Extra resources for American politicians confront the court : opposition politics and changing responses to judicial power
109–148 (2005). 49 Beyond the Countermajoritarian Difficulty 31 the late nineteenth century and that collective action problems account for their failure. The alarm bells currently rung by judges confronting heightened rhetorical hostility also cut against the deference thesis. As one interest group organized to defend judicial authority observed: interest groups and political partisans have been trying to weaken the authority and legitimacy of our courts by painting them as the enemy of mainstream values.
One way to reconcile this paradox is to suggest that judicial aggrandizement has not come at the expense of the elected branches. Political attacks on the federal courts that do not result in undermining judicial power could be a win-win for all sides. 3 Even if either of these accounts were William Lasser, The Limits of Judicial Power:Â€ The Supreme Court in American Politics (Chapel Hill:Â€University of North Carolina Press, 1988), 2, 6. 2 Keith Whittington, Political Foundations of Judicial Supremacy (Princeton:Â€ Princeton University Press, 2007); and Justin Crowe, “Cooperation over Conflict:Â€Congress and the Court in American Political Development,” presented at the New England Political Science Association Annual Meeting, Newport, Rhode Island, 23 April 2010.
11 On how various American political institutions are not democratic, see Sanford Levinson, Our Undemocratic Constitution (New York:Â€Oxford University Press, 2006) and Robert Dahl, How Democratic Is Our Constitution? 2nd ed. (New Haven:Â€Yale University Press, 2001). 5 22 Political Development and Elected-Branch Relations countermajoritarianism motivates persistent attacks on the Court and the ferocity of the antebellum and Reconstruction-era hostilities in particular. Some research suggests that the problem is not what legal scholars have traditionally thought it to be.