Pushback Textbook Notes - Baylor PSC 1387 Bridge Unit 2
Notes on Pushback Pgs 11-19, 31-45, and 187-195.
Key Points
Factionalism within Parties: Political parties are composed of diverse and sometimes competing factions
Leading Faction and Secondary Goals: Within a majority party, a leading faction directs policy. Once primary goals are achieved, the party shifts to "secondary choices," which often have internal disagreements within the party.
Countermajoritarian Decisions and Pushback: When the Supreme Court favors the secondary preferences of a leading faction, it can alienate other factions, leading to “countermajoritarian decisions,” decisions that go against what the majority wants. Dissatisfied factions, and even the minority party, may then unite to push back against the Court.
Parties working together is bipartisanship
Observable Indicators of Pushback: Several indicators can signal a cross-partisan countermajoritarian response, including public opinion, congressional rhetoric, court-curbing proposals, and even party switching.
Forms of Pushback: Pushback against a Supreme Court ruling can manifest in grassroots resistance, congressional actions (like restricting jurisdiction), or electoral realignments aimed at displacing the dominant coalition.
Assumption #1: Factional Majority Coalitions
Core Idea: Political parties are understood as coalitions of various, and sometimes conflicting, factions.
Origins: The size and diversity of the United States, along with its electoral system (ex:, first-past-the-post, race to 270), naturally lead to a two-party system where neither party perfectly represents all its members' views.
Contemporary Examples: The Democratic Party includes diverse groups like cosmopolitans, libertarians, racial minorities, and LGBTQ+. Similarly, the Republican Party encompasses neoconservatives, economic libertarians, the New Right, and Trump supporters, demonstrating internal ideological diversity.
Regime Politics Application: Regime politics scholars utilize this concept to examine how internal tensions within a dominant party coalition can influence the Supreme Court's decisions, particularly when judicial power benefits specific factions.
Assumption #2: Leading Factions and Secondary Choices
Leading Faction: Within factional majority coalitions, one dominant faction typically guides the party's direction, uniting others around a shared governing philosophy and constitutional vision. This leading faction often includes the president and ideologically aligned members of Congress.
Primary Goals vs. Secondary Choices:
Primary Goals: In the early stages of a regime, factions coalesce around overarching, consensus-building issues.
Secondary Choices: As the regime matures, primary goals are either achieved or become stuck. The coalition then turns to issues of lesser importance that are more likely to expose internal disagreements.
Consequences of Secondary Choices: When the leading faction pursues secondary choices, it can lead to decreased coalition cohesion and strain the effective functioning of institutional arrangements. Regime politics scholars use this to explain phenomena like legislative deferrals and the emergence of regional outliers.
Countermajoritarian Decisions and Bipartisan Pushback
The Court's Role: The Supreme Court, being part of the dominant national coalition, can also be influenced by these internal factional dynamics. Justices, while affiliated with the dominant coalition, may hold preferences on secondary issues that diverge from other factions.
Exacerbating Tensions: Instead of resolving internal disputes, Court decisions favoring the secondary preferences of a leading faction can exacerbate them. Unhappy factions may resist judicial rulings.
Cross-Partisan Alliances: Unhappy members of the majority party may ally with members of the minority party. If this alliance forms a majority, it can effectively challenge judicial decisions. This highlights that traditional partisan labels may not always reflect political preferences.
Consequences of Pushback: Successful cross-partisan majorities can delay or block judicial decisions, curb the Court's power, or even shift the electorate to bring a new majority coalition into power. The Court's actions, by "choosing sides," can awaken rather than mend internal coalition fault lines, potentially undermining its own authority and its affiliated coalition.
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Observable Indicators of Pushback
Surface-Level Indicators:
Public Opinion Polls: When a majority opposes a ruling it suggests there is a bipartisan majority because the ruling favors a leading faction's secondary preferences (only some of the faction support this)
However, public opinion can be influenced by the ruling itself.
Congressional Rhetoric: Minority groups/factions/parties in congress often argue the court is countermajoritarian.
Non-leading Faction Response:
Court-Curbing Proposals: Members of dissatisfied factions can introduce legislation aimed at undermining judicial authority, though these proposals rarely pass. The introduction itself signals the discontent.
Party Switching: In extreme cases, members of minority factions may switch parties if Supreme Court decisions contribute significantly to their frustration.
Minority Party Response:
Court-Curbing Bills: The minority party can also propose court-curbing legislation which undermine judicial authority or reduce the impact of a judicial decision.
Issue Evolution: The minority party can exploit divisions within the dominant coalition by taking policy stances on issues raised by the Court, aiming to attract disaffected voters and widen partisan splits.
Forms of Pushback
Grassroots Pushback: Local citizens and officials may resist or limit the enforcement of Supreme Court decisions they disagree with.
Congressional Pushback: The minority party can collaborate with dissatisfied factions in the majority party to introduce bills restricting the Court's jurisdiction or overriding its rulings. Congress can also pass legislation that scales back the implementation of a decision.
Electoral Pushback: The most significant form of pushback involves dissatisfied factions from the majority party joining forces with the minority party to electorally defeat the dominant coalition and its affiliated Court.
Definitions
Regime Politics: A framework for understanding how political institutions, particularly the Supreme Court, operate within the context of a dominant political coalition and its internal dynamics.
Political Party Literature: Academic studies focusing on the internal organization, factionalism, and strategic behavior of political parties.
Faction: A distinct group within a larger political party, often characterized by shared ideology, interests, or demographic representation.
Countermajoritarian Difficulty: The theoretical challenge of reconciling the power of an unelected judiciary with the principles of democratic self-governance, where the Court can overturn the will of the majority.
Dominant National Coalition: The prevailing political alliance that controls the government and shapes policy at a given time.
Leading Faction: The dominant group within a majority party that sets the agenda and guides the coalition's direction.
Primary Goals: Overarching, consensus-building issues that unite factions within a political coalition.
Secondary Choices: Issues of lesser importance that tend to expose and exacerbate internal disagreements among factions.
Court-Curbing Proposals: Legislative measures or proposals aimed at limiting the Supreme Court's jurisdiction, power, or independence.
Issue Evolution: A process where political parties strategically develop and promote new issues to expand their coalition and attract voters.
Key Points
Position Taking responses: aim to diminish the ruling's effectiveness, and position-taking responses that are symbolic and electorally motivated.
The Impact of Congressional "Attacks" on the Court: Even unsuccessful legislative "attacks" on the Supreme Court can influence judicial behavior, signaling dissatisfaction and potentially leading to judicial retreats or modifications of previous rulings.
Presidential Power and Countermajoritarian Decisions
While presidents cannot order justices to rule in a specific way, their influence over countermajoritarian court decisions is substantial. This influence stems from constitutional powers that are largely unchecked.
Appointment Power: Presidents appoint justices, shaping the ideological composition of the Court over time.
Unilateral Powers: These are powers vested solely in the president and are difficult for other branches to counter. The text focuses on two key areas:
Execution of Laws: This involves the president's discretion in enforcing laws and, crucially, judicial rulings.
Agenda Setting: Presidents can shape the national discourse and legislative priorities.
Executive Discretion in Law Enforcement
The "faithful execution" of laws by the president includes significant prosecutorial discretion. This means presidents can choose how strictly or loosely to enforce Supreme Court rulings.
Examples of Enforcement
Eisenhower and Little Rock HS: Sent the National Guard to enforce desegregation when a state governor refused.
LBJ and Miranda: Insisted on federal agents following Miranda warnings even after Congress reduced the requirement for federal investigations.
Examples of Selective Enforcement
Nixon and Miranda: Issued a memo suggesting that failure to give Miranda warnings wouldn't automatically lead to exclusion of confessions, demonstrating a less stringent approach.
Significance: This discretion allows presidents to either actively support or subtly undermine the impact of court decisions through federal agencies.
Presidential Agenda Setting and Public Communication
Presidents are constitutionally empowered to set the national agenda, and they utilize this power to address contentious court rulings.
Methods of Agenda Setting
State of the Union Addresses: A speech given by the president where legislative recommendations are
Public Statements and Speeches: Presidents use press conferences, TV addresses, and radio speeches to communicate directly with the public.
Examples
Nixon on Busing: Raised the issue of "unnecessary school busing" repeatedly (made to force people to go to their local school for more racial justice)
Eisenhower on Passports: Spoke out about the need to update laws after a ruling on denying passports to suspected communists.
JFK on School Prayer: Acknowledged the unpopularity of the Engel v. Vitale decision (public schools cant have prayers) while expressing broad support for the Court.
Nixon on Abortion: Issued a statement regarding abortions on military bases, signaling the GOP's stance to Catholic leaders.
Impact - direct communication allows presidents to frame the political debate, impact public opinion, and influence laws
Congressional Responses to Countermajoritarian Rulings
When the Supreme Court goes against Congress’s opinion, Congress has several ways to react.
Substantive Responses: These aim to directly weaken or negate the court's ruling.
Example
Passing laws to permit states to enact stricter anti-subversion laws after communism cases.
Tried to “overrule” Miranda and Katz with federal law enforcement.
Postponing busing decisions and refusing federal funding for them.
The Hyde Amendment restricting federal funding for abortions.
Effectiveness: These measures can significantly reduce the scope and impact of court judgments, demonstrating that Congress is not sidelined after a ruling.
Position-Taking Responses: These are more symbolic and electorally driven, with limited substantive impact.
Examples:
Hiring more police after Miranda.
Restricting bus travel outside local school districts.
Preventing the Legal Services Corporation from handling abortion cases.
Trivial actions like installing more lights on the White House lawn or funding Bibles for justices, intended to signal displeasure.
Purpose: These actions allow members of Congress to grandstand for constituents, enhance their reelection prospects, and signal political cleavages.
The Impact of Congressional "Attacks" on the Court
Even if legislative attempts to formally curb the Supreme Court fail, the act of introducing and debating such measures can influence judicial behavior.
"Court-Curbing Attacks": These include efforts to amend the Constitution, restrict jurisdiction, or mandate retirements. While rarely successful in their formal aim, they have indirect effects.
How Attacks Influence the Court:
Signaling Displeasure: They signal to the justices that a significant portion of the government, particularly the branch closest to the people, is dissatisfied with judicial pronouncements.
Potential for Judicial Retreat: The Court may back off or modify its rulings in response to sustained congressional displeasure, even if formal curbing measures fail.
Examples of Judicial Retreat:
Communism Cases: The Court delayed hearing cases, reversed decisions, and later refused to hear similar cases after congressional attacks.
Criminal Procedure: Rulings like Warden v. Hayden and Terry v. Ohio scaled back earlier protections after public and political outcry linked the Court to rising crime.
Busing: After Swann, the Court's later decision in Milliken v. Bradley provided an outlet for suburban opposition to busing.
Abortion: Subsequent cases supported some state restrictions and upheld the Hyde Amendment, indicating a withdrawal from the broad implications of Roe v. Wade.
Underlying Reasons for Judicial Retreat: While changes in Court membership and jurisprudential complexity are factors, the text emphasizes the political signaling effect of congressional action.
Presidential Powers
Countermajoritarian Difficulty: The tension in a democracy when unelected judges can overturn laws passed by democratically elected representatives.
Vesting Clause (Article II): The constitutional provision that vests the executive power of the United States in the President, forming the basis for many presidential powers.
Prosecutorial Discretion: The authority of an executive branch official to choose whether or not to prosecute a case, or the manner in which to prosecute it.
Agenda Setting: The ability of political actors, particularly presidents, to influence the issues that are considered important by the public and policymakers.
Substantive Responses (Congressional): Legislative actions that directly alter the scope, effectiveness, or impact of a court ruling.
Position-Taking Responses (Congressional): Symbolic legislative actions designed to signal political stances to constituents and the public, often with minimal practical effect.
Court-Curbing Attacks: Legislative proposals and actions aimed at limiting the power, jurisdiction, or independence of the judiciary.
Key Points
The Countermajoritarian Difficulty & Accountability Problem
Judicial review, where courts strike down laws passed by elected officials, is criticized for being undemocratic.
Unelected judges are seen as unaccountable to the public, unlike elected representatives.
Alexander Bickel is a key figure in articulating these concerns.
Historical Roots of Judicial Restraint
Skepticism towards judicial power dates back to the Anti-Federalists and Jeffersonians.
James Bradley Thayer advocated for judicial deference to legislative judgment unless there's a "clear mistake."
Justices like Holmes and Brandeis, and later Frankfurter, influenced this tradition of judicial restraint.
Bickel's Contribution
Bickel agreed with previous critiques, coining "countermajoritarian difficulty" and emphasizing the "accountability problem."
He argued for "passive virtues" – using procedural doctrines to avoid controversial cases and build judicial capital for crucial interventions (like Brown v. Board).
His ideas have profoundly influenced legal scholarship and jurisprudence, particularly among conservative legal thinkers.
Regime Politics
The Regime Politics model challenges the notion of the countermajoritarian difficulty as a myth.
It posits that courts are part of the ruling "regime" and generally act in ways that support the dominant political coalition.
However, the chapter proposes a theory where courts can inadvertently harm their own coalition by highlighting internal divisions.
The Countermajoritarian Difficulty and Accountability Problem
This section delves into the core criticisms leveled against judicial review. The fundamental issue is that when an unelected judiciary overturns laws passed by democratically elected representatives, it appears to contradict the principles of majority rule. This is the "countermajoritarian difficulty."
Accompanying this is the "accountability problem." Judges, often appointed for life, are not subject to the same electoral pressures as legislators or executives. If the public dislikes a law passed by Congress, they can vote out their representatives. However, there's no direct electoral mechanism to hold judges accountable for their decisions, raising concerns about their legitimacy in a democratic system. Alexander Bickel is presented as a pivotal figure who articulated these concerns with great influence.
Scholarly/Legal Lineage of Judicial Restraint
The critique of judicial power is not new. Early critiques emerged as far back as the 18th century.
Thayer, in the late 19th century, argued that courts should grant a "wide margin of consideration" to legislative judgments, intervening only in cases of "clear mistake." This separation of powers argument suggests courts should focus on legal disputes and defer to the political branches on policy matters.
This philosophy was judicial restraint.
Holmes Jr. believed courts should defer to legislatures, believing they represented the will of the people and should be given the benefit of the doubt.
Brandeis, while also advocating for restraint, employed a more fact-intensive approach, examining non-legal evidence to assess legislative reasonableness.
Frankfurter, deeply influenced by Thayer, Holmes, and Brandeis, became a staunch defender of legislative rights and advocated for judicial hands-off where possible.
Bickel, a “clerk” to Frankfurter, wrote down these ideas. While acknowledging the necessity of judicial intervention in cases like Brown v. Board of Education, he worried about the potential for the Court to overstep its bounds. Bickel proposed "passive virtues.” (using procedural doctrines like standing or ripeness as a way for the Court to avoid politically charged cases, thereby building reputation for when decisive action was truly needed) His "Lincolnian tension" (?) acknowledged the need for both adherence to law and necessary interventions.
Countermajoritarian and Accountability Criticisms\
The text traces the historical application of these criticisms. Even early in American history, figures like Thomas Jefferson and his supporters questioned the power of unelected judges. Throughout the 19th and 20th centuries, whenever a political faction lost a significant court case, countermajoritarian and accountability arguments were often invoked. The Lochner era, in particular, saw widespread protests against the Court's perceived overreach.
The New Deal era witnessed a surge of criticism against the judiciary, with figures like Robert Jackson questioning whether democracy should yield to judges. Franklin D. Roosevelt's court-packing plan was a direct challenge stemming from these concerns. More recently, Bickel's ideas have been influential among contemporary scholars, judges, and politicians, shaping debates around judicial review and originalism.
Regime Politics
“Regime politics" is an approach that challenges the notion that the countermajoritarian difficulty is a primary characteristic of judicial review. Instead, it argues that courts are integral parts of the national governing "regime" and tend to act in ways that align with or support the dominant political coalition. While courts may generally be regime-friendly, their rulings can inadvertently expose and exacerbate internal divisions within the majority party, leading to coalition breakdown.
Definitions
Accountability Problem: The concern that unelected judges are not directly accountable to the electorate, unlike elected officials, which can undermine democratic legitimacy.
Judicial Review: The power of courts to review the constitutionality of laws and actions taken by the legislative and executive branches.
Judicial Restraint: A philosophy of judicial decision-making that emphasizes a limited role for the judiciary in striking down laws.
Passive Virtues: Bickel's concept of the Court using existing procedural doctrines to avoid deciding controversial cases, thereby conserving the court’s reputation/favor.
Regime Politics: An approach to politics that views courts as part of the broader national governing "regime" and suggests they generally act in ways that support the dominant political coalition.