Regime Politics and the Countermajoritarian Problem

Mark Graber

During the past decade, prominent political scientists have written terrific essays under the rubric "political regimes." Many essays cite as foundational such previous work as Robert Dahl’s "Decision-Making in a Democracy: The Supreme Court as a National Policymaker," 6 Journal of Public Law 279 (1957). Neither Dahl nor the first studies which elaborated his thesis, however, used the term "political regimes" to describe their analysis. Indeed, these foundational works had a somewhat different point than works which self-consciously employ the "political regimes" label. At least, this is true of an essay I wrote that is sometimes cited in this vein. With some luck, this post (and possibly a few others) will clarify matters and not add to the confusion.

Dahl and others were convinced that Alexander Bickel’s countermajoritarian difficulty did not describe constitutional politics in the United States. "When the Supreme Court declares unconstitutional a legislative act or the action of an elected executive," Bickel famously declared, "it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it." Political science research suggested that this was mistaken. Constitutional majorities rarely opposed judicial decisions declaring laws unconstitutional. More often than not, the historical evidence indicated that judicial decisions declaring laws unconstitutional reflected tensions within governing coalitions or tensions between different governing institutions, each with some plausible democratic pedigree. To take a simple and well known example, the Eisenhower administration first signed an amicus brief urging the justices to declare segregated schools unconstitutional and then appointed to the Supreme Court jurists on record as committed to supporting the Brown decision. Brown may raise normative questions about judicial power, but these questions, the behavior of the Eisenhower Administration suggests, are not well captured by the counter-majoritarian difficulty.

This early literature was largely agnostic on which governing institution most influenced the Supreme Court. My 1993 essay on the subject suggested that the court would have some tendency to side with the president during presidential disputes with Congress, and was more likely to side with the elite wings of national parties in disputes that divided political elites from their mass base. Nothing essential to the Dahlian thesis or my variation rode on this insight. The central claim was that the Supreme Court was likely to declare laws unconstitutional only when either the ruling coalition was divided between different factions or the government was divided between different parties. Dred Scott fit the model because the sectionally divided Democratic party virtually begged the Supreme Court to decide the constitutional status of slavery. If, in fact, prominent members of the dominant majority wanted the Supreme Court to decide this issue, then the countermajoritarian critique of Dred Scott is wrong (although different normative critiques might be right). Normative theory about the judicial function needed a new paradigm. That was the point and, at the time, the only point, that a [constitutional] majority of the representatives of the people of the here and now were not being thwarted by judicial decisions such as Brown and Dred Scott.

Contemporary analysis that goes under the explicit label, "regime politics," attempts to answer a question Dahl and others left open, namely what governing institution or political faction most influences the Supreme Court. Some commentators look at presidential influence on Supreme Court decision making. Others examine how well judicial decisions track particular political party platforms. Most studies find considerable influence. Nevertheless, as Tom Keck points out in two very important essays published by the American Political Science Review and Law and Social Inquiry, all efforts to explain Supreme Court decisions declaring laws unconstitutional by reference to a single external factor, be that factor the president, the Republican party, or popular opinion, fail to explain a good deal of what the Supreme Court does. Unfortunately, while Keck correctly noted that some "political regimes" scholars overstated the extent to which Republican presidents or the Republican party influenced Supreme Court decisions declaring laws unconstitutional, he attributed those theses to Dahl, myself, and other persons who found the countermajoritarian difficulty a poor description of Supreme Court practice.

My sense of the universe is that we should use the term "regime politics" to encompass any theory which suggests that judicial decisions are unlikely to thwart the will of every faction within the governing majority or a constitutional majority of the representatives of the here and now. We would then be free to consider which factions and institutions exert how much influence on judicial practice without thinking that refuting a particular theory refutes the original Dahlian insight. Debates over which institutions and factions judicial review privileges are debates within regime politics and not a debate between regime politics and some other theory. Moreover, I suspect the evidence will indicate that, although justices have certain tendencies to side with particular political institutions and factions, the Supreme Court ought not be considered an agent of those factions or institutions. We are likely to discover, as a number of us have pointed out, that traditional legal matters, not power politics, helps explain which institutions or factions within the dominant national coalition tend to be privileged by the judicial power to declare laws unconstitutional.

No one has the patent on "political regimes." If, as is too common, the political regime is treated as consisting largely of the president or the platform of the president’s party, we should at least recognize that the treating judicial review as countermajoritarian is not the only alternative to regime politics theories.

Posted 11:10 PM by Mark Graber [link]