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American politicians confront the court : opposition by Stephen M. Engel

By Stephen M. Engel

Politicians have lengthy puzzled, or perhaps been brazenly antagonistic 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 safety of judicial strength? Addressing this query anew, Stephen Engel issues to the slow recognition of dissenting perspectives of the structure, that's, the legitimacy and loyalty of reliable competition. Politicians' altering belief of the danger posed via competition encouraged how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced through the years, their procedure towards the judiciary - the place competition may possibly turn into entrenched - replaced besides. as soon as competition was once not visible as a basic chance to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial strength may be construed much less because the seat of an illegitimate competition and extra as an device to accomplish political ends. Politicians have been prone to harness it to serve their goals than to brazenly undermine its legitimacy. briefly, 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 energy for political ends. Engel's publication brings our knowing of those manipulations into line with different advancements, comparable to the institution of political events, the attractiveness of unswerving competition, the advance of other modes of constitutional interpretation, and the emergence of rights-based pluralism.

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Dissent (Winter 1998), 65. 11 On how various American political institutions are not democratic, see Sanford Levinson, Our Undemocratic Constitution (New York:€Oxford University Press, 2006) and Robert Dahl, How Democratic Is Our Constitution? 2nd ed. (New Haven:€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.

S. 558 (2003) and its upholding of affirmative action in university admissions in Grutter v. S. 306 (2003). 23 See Jeffrey Segal, “Separation-of-Powers Games in the Positive Theory of Congress and Courts,” American Political Science Review 91 (March 1997), 28–44; and McNollgast, “Politics and the Courts:€A Positive Theory of Judicial Doctrine and the Rule of Law,” Southern California Law Review (1994–95), 1631–84; Tom S. Clark, “The separation of Powers, Court Curbing, and Judicial Legitimacy,” American Journal of Political Science 53(October 2009), 971–89.

S. 429 (1895); and the Twenty-Sixth Amendment (1971) setting the voting age at eighteen negating Oregon v. S. 112 (1970). Similarly, statutory reversals of judicial rulings are not necessarily attempts to discipline the Court but to clarify existing statute in an ongoing inter-branch colloquy. Judges may clarify legislation that was either intentionally or unintentionally vague, asking legislators to respond. See Jeb Barnes, Overruled? (Stanford:€Stanford University Press, 2004); and Shep Melnick, Between the Lines (Washington, DC:€Brookings Institution, 1994).

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