Balkinization: Regime Politics and Non-Majoritarian Problems

Regime Politics and Non-Majoritarian Problems

Mark Graber

Howard Gillman, the founder of historical institutionalism in public law, is writing some very interesting stuff on the Empirical Legal Studies Blog. Today, he focuses on "regime politics," the view, espoused by many political scientists, that judicial review in practice more often serves than thwarts the will of elected officials in the dominant national coalition. My work is often cited as being in this tradition. But I am not sure. Below is a version of my comment on Professor Gillman's post.

I'm a big fan (what else is new) of the so-called "regime politics" literature and an even bigger fan of Howard Gillman's contributions (he "accidently" omitted his award winning essay in the 2002 APSR and his contribution to the recent Kahn/Kersch volume--both of which ought to be required readings in public law graduate courses). Still, I wonder whether "regime politics" correctly captures what is going on. Gillman is interested in "how much of the behavior of judges -- and (for that matter) how much of the development of law -- can be explained if we assume that courts often serve what Robert Dahl once called the "dominant governing coalition" of a polity." My own sense of the universe is that while some legal developments can be said to serve the interests of the dominant governing coalition (Jacksonians from all over the spectrum wanted the court to decide Dred Scott), more often than not, judicial review serves the interests of only some members of the dominant coalition. I think I can explain why some large number of Republicans welcomed Lawrence (either because they liked the result or wanted the court to resolve the issue), but I would not say it served the interests of the entire coalition. This was a point I tried to make, but did not make at all clearly in the very dated "Non-majoritarian" essay alluded to in the main post (boy, do I wish I could rewrite the thing in light of what others have taught me). Dominant national coalitions are quire frequently fragmented, that rather than understand judicial review as either thwarting or serving the interests of dominant national coalitions, we would better understand the practice as advancing some fragments of the dominant national coalition at the expense of others. (Think Kevin McMahon's story of how Democrats in the executive branch used courts to circumvent Democrats in the Congress on racial issues).

Posted 3:47 PM by Mark Graber [link]