Last updated 09/07/24: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website: https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 26 August 2022
Robert Dahl's “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” has long enjoyed pride of place within American politics scholarship, especially among regime theorists. However, Dahl's views of the U.S. Supreme Court are no longer defensible. It is essential for our field to move beyond “Decision-Making in a Democracy” in order to better theorize and explain the modern Supreme Court.
1 Dahl, Robert A., “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 279–95Google Scholar.
2 Ibid., 284, 294.
3 Ibid., 285.
4 Ibid., 293.
5 Ibid.
6 Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics (New York: W.W. Norton, 1970).
7 On the strength of the liberal consensus in the 1950s, see Morton White, Social Thought in America: The Revolt Against Formalism (Boston: Beacon Press, 1957); Lionel Trilling, The Liberal Imagination (New York: NYRB Books, 2008; originally published 1950); Jennifer Delton, Rethinking the 1950s: How Anticommunism and the Cold War Made America Liberal (New York: Cambridge University Press, 2013); Steven Teles, The Rise of the Conservative Legal Movement (Princeton, NJ: Princeton University Press, 2008).
8 Alexander Bickel, The Least Dangerous Branch (Indianapolis, IN: Bobbs-Merrill, 1962). Barry Friedman's exhaustive five-part series is a useful intellectual history of the “counter-majoritarian difficulty” that Bickel identified. See, e.g., Friedman, Barry, “The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five,” Yale Law Journal 112 (2002): 153–259CrossRefGoogle Scholar.
9 Hacker, Jacob and Pierson, Paul, “After the ‘Master Theory’: Downs, Schattschneider, and the Rebirth of Policy-Focused Analysis,” Perspectives on Politics 12 (2014): 643–62CrossRefGoogle Scholar.
10 See, e.g., Ronald Kahn and Ken Kersch, eds., Law and American Political Development (Lawrence: University Press of Kansas, 2006); Frymer, Paul, “Law and American Political Development,” Law & Social Inquiry 33(2008): 779–803CrossRefGoogle Scholar.
11 Thomas Keck, The Most Activist Court in History: The Road to Modern Judicial Conservatism (Chicago: University of Chicago Press, 2004).
12 Graber, Mark, “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7(1993): 35–72CrossRefGoogle Scholar; Gillman, Howard, “How Political Parties Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” American Political Science Review 96 (2002): 511–24CrossRefGoogle Scholar.
13 Kevin McMahon, Reconsidering Roosevelt on Race (Chicago: University of Chicago Press, 2010); Keith Whittington, Political Foundations of Judicial Supremacy (Princeton, NJ: Princeton University Press, 2008).
14 See, e.g., Graber, “The Non-Majoritarian Difficulty”; Keith Whittington, Repugnant Laws: Judicial Review of Congress from the Founding to the Present (Lawrence: University Press of Kansas, 2019).
15 Thomas Keck, Judicial Politics in Polarized Times (Chicago: University of Chicago Press, 2014).
16 Timothy La Pira, Lee Drutman, and Kevin Kosar, eds., Congress Overwhelmed: The Decline in Congressional Capacity and Prospect for Reform (Chicago: University of Chicago Press, 2020).
17 Frances Lee, Insecure Majorities: Congress and the Perpetual Campaign (Chicago: University of Chicago Press, 2016).
18 Jacobs, Nicholas F., King, Desmond and Milkis, Sidney M., “Building a Conservative State: Partisan Polarization and the Redeployment of Administrative Power,” Perspectives on Politics 17 (2019): 453–69CrossRefGoogle Scholar.
19 Bill Pryor, “The Supreme Court as Guardian of Federalism,” Federalist Society for Law & Public Policy Studies, July 11, 2000, https://web.archive.org/web/20030803105145/http:/www.ago.state.al.us/speeches.cfm?Item=Single&Case=8; Corey Robin, The Enigma of Clarence Thomas (New York: Metropolitan Books, 2019).
20 Sarah Staszak, No Day in Court: Access to Justice and the Politics of Judicial Retrenchment (New York: Oxford University Press, 2015); Stephen B. Burbank and Sean Farhang, Rights and Retrenchment: The Counterrevolution against Federal Litigation (New York: Cambridge University Press, 2017).
21 Rubin, Ruth Bloch and Elinson, Gregory, “Anatomy of a Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954–1958,” Law & Social Inquiry 43 (2018): 944–80CrossRefGoogle Scholar.
22 Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015); Ann Southworth, Lawyers of the Right: Professionalizing the Conservative Coalition (Chicago: University of Chicago Press, 2008); TerBeek, Calvin, “‘Clocks Must Always Be Turned Back’: Brown v. Board of Education and the Racial Origins of Constitutional Originalism,” American Political Science Review 115 (2021): 821–34CrossRefGoogle Scholar; Baumgardner, Paul, “‘Something He and His People Naturally Would Be Drawn To’: The Reagan Administration and the Law-and-Economics Movement,” Presidential Studies Quarterly 49 (2019): 959–75CrossRefGoogle Scholar; Daniel Bennett, Defending Faith: The Politics of the Christian Conservative Legal Movement (Lawrence: University Press of Kansas, 2017); Amanda Hollis-Brusky and Joshua C. Wilson, Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture (New York: Oxford University Press, 2020); Ken I. Kersch, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (New York: Cambridge University Press, 2019).
