Big Money Unleashed by Ann Southworth

Author:Ann Southworth [Southworth, Ann]
Language: eng
Format: epub
Tags: POL000000 POLITICAL SCIENCE / General, POL006000 POLITICAL SCIENCE / American Government / Legislative Branch, POL008000 POLITICAL SCIENCE / Political Process / Campaigns & Elections, POL042020 POLITICAL SCIENCE / Political Ideologies / Conservatism & Liberalism
Publisher: The University of Chicago Press
Published: 2023-12-15T00:00:00+00:00

The Judicial Role

Justice John Roberts famously endorsed an exceptionally (and many would say absurdly) strong version of expectations about the judicial role in opening remarks during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules; they apply them . . . [As a Supreme Court justice] I will remember that it’s my job to call balls and strikes and not to pitch or bat.”5

Most knowledgeable observers of the Supreme Court agree that the umpire metaphor bears little resemblance to how the Court actually resolves—or can reasonably be expected to resolve—most constitutional claims. While the text of the Constitution yields clear answers to some constitutional questions, such as how old the president must be,6 it rarely does so with respect to constitutional questions that reach the Court, which typically involve the Constitution’s more open-ended provisions. Nor does the application of existing precedents reliably answer those questions in the way suggested by the “calling balls and strikes” metaphor.

More-realistic expectations about the judicial role situate it within broader political dynamics in and around the Court. I will not try here to summarize the extensive literature on judicial behavior since the primary focus of this book is on the nonjudicial contributors to constitutional change through the courts. Suffice it to say for purposes of this chapter that substantial research shows that Supreme Court justices are responsive to signals from other political actors and broader audiences, including those responsible for their appointment. Lifetime tenure partially insulates the justices from political pressure, but that insulation is limited. In a comprehensive examination of all Supreme Court cases from 1789 through 2018 involving constitutional challenges to legislation, Keith Whittington found that “the justices have proved themselves to be the allies of political coalition leaders” in patrolling the boundaries of legislative authority—both in upholding laws and striking them down.7 A large body of empirical evidence shows that conflicts between the Supreme Court and other branches eventually resolve to bring constitutional law into alignment with the constitutional understandings and policy agenda of the dominant political coalition.8

The Supreme Court’s legitimacy nevertheless depends upon public confidence that the justices are not just “politicians in robes.” The justices have an institutional interest in preserving the authority of the Court, and therefore they tend to be attentive to expectations about proper judicial behavior. The norms that the justices are expected to obey include ideas about judicial restraint, incremental decision-making, adherence to precedent, appropriate interpretive methods, and deference to lower court fact-finding.9 The justices are also expected to resist direct political pressure and partisan favoritism. These norms help explain why Whittington’s research found that in the broad sweep of history the justices generally have operated as the allies of political leaders but “not their servants.”10 A Court that defies norms of judicial behavior risks undermining the institution’s legitimacy in the eyes of the public.11

In the past several decades, the justices’ views of the Constitution and their approaches to interpreting it have become more closely intertwined with the political ideology of the party of the appointing president.

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