By Stephen M. Engel
Politicians have lengthy puzzled, or perhaps been overtly antagonistic to, the legitimacy of judicial authority, yet that authority turns out to became safer through the years. What explains the recurrence of hostilities and but the safety of judicial strength? Addressing this question anew, Stephen Engel issues to the slow reputation of dissenting perspectives of the structure, that's, the legitimacy and loyalty of strong competition. Politicians' altering notion of the possibility posed via competition motivated how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced through the years, their process towards the judiciary - the place competition may develop into entrenched - replaced to boot. as soon as competition was once now not noticeable as a primary possibility to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial energy can 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. in brief, 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 booklet brings our knowing of those manipulations into line with different advancements, comparable to the institution of political events, the recognition of dependable competition, the advance of other modes of constitutional interpretation, and the emergence of rights-based pluralism.
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Additional resources for American politicians confront the court : opposition politics and changing responses to judicial power
43 The value of this claim lies in its direct engagement with a fundamental change in inter-branch relations and in its recognition that accounting for that change is essential for any understanding of what is occurring today. What I put at issue is the precise nature of the normative change that took place. I do not seek to discredit norm development as an explanation for change over time; my own explanation elaborated in Chapter 2 relies on a normative shift. I do question the evidence gathered to prove the development of this particular norm of deference to judicial authority.
Once Congress starts down this road, there is no area of human endeavor that could not be reached by a simple act of Congress altering the jurisdiction of federal courts to control the outcome of cases. Tomorrow, our most basic constitutional protections could be at stake. , “The Federal Courts under Siege,” Annals of the American Academy of Political and Social Science 462 (July 1982), 29. 36 Political Development and Elected-Branch Relations objective. For example, in response to the Supreme Court’s busing rulings in the 1970s, separate bills curbed federal jurisdiction, cut funding to the Department of Health, Education, and Welfare to enforce busing, and prohibited the Department of Justice from initiating or supporting litigation that might promote busing.
A tactic attempting to harness judicial power to a particular political end. Second, we should distinguish between whether hostile measures come proposed as normal legislation or as constitutional amendments. My expectation is not that legislators will propose less court-weakening measures over time, but that proposals will allow for position-taking credit without damaging a plausible longer term interest in a strong judiciary. Amendments can function as symbolic politics:Â€by advocating them, politicians exploit short-term electorally strategic rhetoric while not taking additional, potentially costly action to weaken courts that may be strategically beneficial in the long term.