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AMERICAN CONSTITUTIONALISM: SHORT-RUN SITUATION

130615

AMERICAN CONSTITUTIONALISM: SHORT-RUN SITUATION

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DIMENSIONS OF POLITICS                    DIMENSIONS OF POSTS

Sectors: All                                             Importance: ****

Level: National                                       Scope: USA only

Period: Short run                                   Process: Elite policy-making

MAIN TOPIC: CONSTITUTIONALISM     Treatment: Commentary. Background.

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CONTENTS

Introduction: Decisions, confirmations, configurations

Recent decisions: 2012 and 2013

Decision processes: Law/ politics or internal/ external?

Conclusion: Political configuration

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SERIES: This Post is the second in a series on AMERICAN CONSTITUTIONALISM. The Series asks, what is it? How does it relate Law and Politics to each other? What is the current relationship between the original 1787 Constitution and the less formal “constitution” since gradually constituted by ordinary legislation? What is the role of the Judiciary in relation to Other institutions? The first Post in this series stated these general Themes.

This Post reports some recent Supreme Court decisions and notes some ways to think about any current constitutional Situation (short-run, individual). The next Post will address gradual doctrinal change that eventually produces “shift” in constitutional Regime (mid-run, institutional). A final Post will treat historical Development, both constitutional and political (long-run, systemic).     

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130615

AMERICAN CONSTITUTIONALISM: SHORT-RUN SITUATION

This Post discusses how to understand a short-run SITUATION in American Constitutional Politics. The Introduction sketches some main elements (decisions, confirmations, and configurations). We then report some important recent Supreme Court decisions (2012 and 2013). We continue with some recent shifts in academic analysis of Court decisions (from “law versus politics” to “internal versus external”). The Conclusion returns to the role of “Political Configuration” in short-run Constitutional Situation. The References contain many Readings on short-run analysis of American constitutional politics – too many to cover in this Post but that this Blog hopes to explore in the future.

INTRODUCTION: DECISIONS, CONFIRMATIONS, CONFIGURATIONS

Current constitutional politics mainly involves the smallest units of analysis. Temporally, that is the short run: say from one annual Court session to five or ten. (Possible markers include the tenure of a particular Chief Justice, stability in Court membership, or a distinctive Configuration in national politics.) Functionally, the small scale focuses narrowly on particular decisions about a particular series of legal precedents within a specific policy domain. Structurally, the smallest scale is individual Justices – both thinking alone by themselves and interacting with each other in their distinctive institutional context (the Court).

In constitutional politics, the Temporal dimension has some priority. Current decisions usually involve earlier decisions – whether to uphold, modify, or overturn them. Also, current decisions set precedents for future decisions. The constitutional principle is that earlier decisions should stand (stare decisis) unless there is compelling reason to change them. A main journalistic and political frame for viewing a current Supreme Court is its degree of “restraint” versus “activism.” Does the Court mostly just uphold and clarify previous decisions (restraint)? Or does it drastically reinterpret or boldly overturn previous decisions, even to the extent of making new law (activism)?

Temporally, overall, small-scale processes both rely on and reconstitute larger-scale processes. A particular short-run decision must be understood in the context of the mid-run set of precedents that it confirms or overturns – the midrun “constitutional order” surrounding that particular “policy domain.” During a mid-run period, if specific “orders” are somewhat ideologically consist with each other, they can add up to a distinctive overall mid-run constitutional REGIME. The relationships between successive Regimes define American Constitutional DEVELOPMENT. The next two Posts will expand the scale of analysis from current decisions (micro), first to multi-decade constitutional Regimes (meso) and then to American constitutional- political development as a whole (macro).

DECISIONS by the national Supreme Court are the main way in which constitutional politics presents itself to the American public in current news. Certainly Decisions by the Supreme Court are the most important ones in American politics. The Court chooses to address only about 1% of the cases that are appealed to it. About half of those cases require the Court to interpret the meaning of the Constitution as it applies to some federal or state statute or policy. The other half requires the Court to interpret the meaning or application of a federal statute, including in the work of federal agencies. Nevertheless, MOST judicial work in American politics is done by lower federal courts and by state and local courts. Sometimes their Decisions make the news as well, mostly those on controversial issues, particularly if lower Decisions address questions that are likely eventually to have to go to the Supreme Court for resolution. (A small third category of Supreme Court decisions concern suits between states. See Greenhouse 2012, pages 13-24.)

Intermittently, another key short-run dynamic of constitutional politics is political battles over CONFIRMATION of new national Justices by the national Senate. Selections of new justices – through presidential nominations and congressional confirmations – are among the most consequential acts in American politics. Potentially they can have a strong immediate effect on law and policy and can affect law and policy for decades to come. Objectively, confirmation battles should be most fierce over nominations that are likely to shift majority control of the Supreme Court from one ideology or party to another. They should be only somewhat less fierce over nominations that are likely to change the ideological or partisan composition of the Court, even if the nomination does not immediately shift majority control. Another key confirmation should be that of a likely Chief Justice. Overall, the fierceness of confirmation battles does largely correspond to those predictions. Nevertheless, sometimes battles are more or less fierce than predicted. Often it is difficult for politicians to determine the likely future ideological orientation of a nominee. Sometimes the political importance of a nomination is increased or decreased by related political events such as other appointments or surrounding issues. (On confirmation politics, see Tushnet 2005/2006, 329-341.)

Decisions and Confirmations always interact with a third short-run factor: the current CONFIGURATION of national politics. On any specific policy issues at stake in Court Decisions or Confirmations, what is the distribution of opinion across branches of government and within public opinion? Court decisions seldom get conspicuously far out of line with congress and public (Dahl 1957). If they do, they provoke backlash. In general, what is the distribution of control by different ideologies or parties across different branches of government (united or “divided”) and within public opinion (centrist or polarizied)? The same Supreme Court (particular ideological or partisan orientation) will function differently depending on whether or not the ideology or partisanship that predominates on the Court also predominate in other branches of government and within public opinion. (On Political Configuration, see Tushnet 2005/2006, pages 341-345. We return to this in the Conclusion.)

RECENT DECISIONS 1

In American politics, June is the main season for Supreme Court decisions. Over previous months, the Court has accepted key cases and heard oral arguments, reached private decisions and drafted written opinions. After the Court publicly announces decisions, litigants and their supporters rejoice over victory or despair over loss. Legal journalists attempt to explain what the Court has decided and why. Political journalists assess the likely effects on public policy and partisan politics. The Court’s solemn symbolism implies that fundamental principles have been definitively clarified, with momentous implications for both the conduct of government and the lives of Americans. As all the media attention correctly implies, what the Supreme Court decides certainly does have important implications for public policy, particularly in the domain of individual rights.

Nevertheless, a main problem with annual rounds of Supreme Court decisions is that most Americans hardly know what to make of it all. The Court’s main JOB is to focus on general constitutional issues (difficult for ordinary citizens to understand), NOT the substantive merits of particular cases (easier to understand). As noted in the previous Post (130608), the Court frames these general issues in arcane legal theories expressed in obscure legal language, based on idiosyncratic precedents within American constitutionalism. These constitutional issues may have little relationship to the substantive merits of specific cases, the sorts of practical standards of justice that ordinary Americans can understand.

The Court decides cases largely in private through negotiations that are seldom revealed. Justices issue opinions aimed more at establishing legal precedents against rivals and for successors than at explaining to the American public what they are doing. The justices themselves often disagree and often decide major issues by narrow margins that everyone knows could be overturned by the replacement of a justice or two. It is hard to grasp the principles involved and to anticipate their practical implications. Often the obvious explanation is ideological or partisan interest. Public approval of the Supreme Court remains higher than public approval of other branches of the national government. Nevertheless, approval has declined over recent decades and become more polarized: temporarily high for those who agree with a particular decision, temporarily low for those who disagree. (See Karlyn Bowman and Andrew Rugg 120614 “Public opinion on the Supreme Court, 1937-2012" at aei.org. Also John Wihbey 130628 “The Supreme Court and public opinion: Research roundup” at Journalist’sresources.com.)

Thus understanding the significance of particular decisions on particular cases is difficult – even in relation to a specific policy domain, not to speak of more general constitutional principles. Given the often idiosyncratic way in which the 1787 Constitution mentions particular policy domains, it is not easy to grasp how the Constitution defines them or to substitute more common-sense descriptions. Thus legal journalists continue to speak not of equal rights but of particular Amendments, not of economic regulation but of the “commerce clause”, not of the separation of politics from religion but of the “establishment clause”, and so on.

2012: Health reform 1.1

The most dramatic recent Supreme Court decision was the one in June 2012 that (barely) upheld the constitutionality of (most of) Obama’s reform of health insurance (the Affordable Care Act or ACA). The health decision was a major one and deservedly dominated the news. The politics of the decision surprised most observers, who expected a straight partisan split between justices appointed by Republican and Democratic presidents, with centric justice Anthony Kennedy providing the swing vote for or against. Instead the swing vote for upholding most of health reform came from one of the most conservative members of the Court, Chief Justice John Roberts (discussed below). The decision created much drama because it concerned not only individual rights but also the constitutional powers of congress, presidency, and states.

Can Congress use its authority over interstate commerce to penalize individuals if they fail to buy health insurance? The Court said it could NOT. Non-purchase was not economic activity that congress could regulate but an ABSENCE of such economic activity. Besides, health policy was basically not “economic.” This rebuke was a major break in a long recent tradition (since the 1930s) of allowing congress to use the Commerce Clause to impose pretty much any kind of national regulation that it wanted. Nevertheless, the Court said that congress COULD impose health penalty under its power to tax.

If the Court had declared health reform unconstitutional, that would have been a major political blow to president Obama. In 2009-2010 he had invested major political resources to pass the reform through Congress. If the Supreme Court had been struck down the reform, he would have achieved nothing. The Supreme Court’s upholding health reform permitted Obama to still claim it as an accomplishment.

It soon came out that, in the course of deliberation, evidently Chief Justice Roberts had changed his mind. Evidently at first he had sided with the other ultra-conservatives on the Court who wanted to strike down health reform as an exercise of liberal “big government.” Only after thinking about it for a while did Roberts decide to allow most of the reform to stand. Smart legal journalists guessed that – even as he was staking out grounds for the future further exercise of judicial power – he wished to avoid the appearance of a partisan exercise of it. An even subtler interpretation was that Roberts was also trying to do a good job. He recognized that, when congress had passed health reform, the Court had not yet begun to distinguish between economic and non-economic exercises of the commerce clause, so it would be unreasonable for the Court to overturn the reform on that basis (Koppelman 2013).

Roberts’ defection made the other Court ultra-conservatives furious, particularly the famously irascible Scalia, who indirectly but bitterly complained about Roberts’ “betrayal” when discussing another case from the bench. Oddly, however, reportedly it was not the ultra-conservatives who pleaded most strongly with Roberts to change his mind again and strike down the health reform. Instead it was the centrist but rather libertarian justice Kennedy, who believed that Obama’s health reform violated individual rights.

Political pundits wondered whether Roberts’ “betrayal” would permanently harm his relations with the ultra-conservatives. It shouldn’t. Roberts himself wrote the majority opinion, in order to make the rationale for upholding the health reform law as conservative as possible. Refusing congress the power to regulate economic inactivity and introducing a distinction between economic and non-economic activity both lay the grounds for further limiting congress’ power under the commerce clause in the future. Moreover, Roberts did strike down one part of the Obama health reform, by denying the federal government the power to withhold existing federal health subsidies from any state that chose not to expand medical coverage of poor people (Medicaid). Furthermore, overall, protecting the power of this conservative Court paved the way toward the Court’s exercising more power in the future.

In 2012, the Court’s reaffirmation of states’ rights encouraged conservative states to consider not expanding Medicaid, for fear of the eventual long-term costs of subsidizing poor people (e.g., Florida, South Carolina, and Louisiana – Pear & Cooper 120630 NYT ). Nevertheless, eventually most states did accept the short-term financial incentives that ACA provides to persuade states to expand Medicaid (Klein 120703 WaPo). The Court’s skepticism encouraged legal challenges to specific parts of ACA, such as the law’s requirement that providers offer contraception and the law’s establishment of a new Medicare panel that Republicans call a “rationing board” (Haberkorn 120704 PoCo).

2013: Minority rights 1.2

June 2013 decisions were less dramatic but still important. Roberts continued the conservative assault by exercising the Court’s discretion over what cases to accept for review, selecting two cases about minority rights that the Court could have chosen to ignore. Evidently Roberts hoped to overturn liberal principles in two related “anti-discrimination” policy domains: voting rights and affirmative action. Roberts succeeded on voting rights but failed on affirmative action.

(Linda Greenhouse 130629 and 130710 at nytimes.com.)

The 1965 VOTING RIGHTS act was a “super-statute,” an extra-constitutional cornerstone of the Great Society liberal constitutional order. In order to prevent discrimination by race, can the national government continue to supervise administration of elections in localities with past histories of egregious electoral discrimination? In principle yes, but in practice not so much: the Court ruled that congress must update its evidence for discrimination. As the Court well knew, the current political Situation makes it impossible for congress to do so. As in 2012, in 2013 the Court’s reaffirmation of states’ rights again encouraged conservative states to pursue conservative policies, this time requiring that voters present stronger forms of identification, ostensibly in order to avoid “voter fraud” (a negligible problem) but probably in order to obstruct voting by minorities likely to support liberal candidates (a longstanding strategm). (For a short clear summary of the voting rights case, see William Peacock 130625 at findlaw.com.)

A related decision concerned AFFIRMATIVE ACTION to combat racial discrimination. In admitting students, if a college favors applicants of some races (the ones that historically suffered discrimination), does that violate the rights of applicants of other races? Potentially yes so, the Court ruled, the practice requires “strict scrutiny” by courts. A long delay in issuing this decision suggested that Roberts had tried but failed to persuade Court centrists to make any form of affirmative action unconstitutional. (On the affirmative action case, see Peacock 130624 at findlaw.com.)

A third important 2013 question concerned discrimination by gender. Do people of the same sex have a right to marry that is equal to the right to marry of people of different sexes? Yes, the Court ruled. This may have been an issue that the Court was not eager to address but that it could not avoid addressing because the lower court ruling had invalidated a federal statute. (On the same sex marriage case, see Peacock 130626 at findlaw.com.)

Overall, what smart legal journalists stressed about the 2012-2013 Court session was the need to view it was part of a mid-run conservative strategy for eroding and replacing liberal constitutional orders (Adam Liptak 130628 at nytimes.com). Evidently sometimes that strategy was rather crafty. For example, in a 2009 case on federal power to review state decisions on voting rights, in exchange for Roberts’ upholding that power, Court centrists allowed him to write some conservative language into that opinion without dissent, including both the claim that such reviews might by now be out of date and the claim that federal and state “sovereignty” are equal. In 2013 Roberts drew on that very language to curtail that same federal power, provoking an unusually sharp dissent from centrist Ginsburg, who demolished both claims. Explaining her sharpness, Linda Greenhouse invoked the old saying: “Fool me once, shame on you; fool me twice, shame on me.” (130710 on Opinionator at nytimes.com).

During his confirmation hearings in 2005, in response to questions from liberal senators, conservative Roberts affirmed the principle of “stare decisis.” What the liberal senators were really asking was whether Roberts would overturn key liberal decisions such as that legalizing abortion (1973 Roe v. Wade). What Roberts was really replying was that, no, in principle he would not overturn the decision itself. But in practice he would – following conservative strategy in many policy domains – allow states to impose more and more stringent restrictions on abortion, greatly reducing the liberal effect of the decision. (On liberals’ earlier misreading of Roberts, see Armando 130630 at dailykos.com, recalling a foresighted 070628 piece by Emily Bazelon at slate.com.)

The voting rights matter illustrates that Roberts does believe strongly in stare decisis – for his own decisions! As someone has remarked, evidently he will go on writing conservative principles into constitutional law as long as a he can get away with it. That could be a long time, given how young he still is. The main question is whether liberal presidents will be able to appoint liberal justices who will deprive Roberts of his conservative majority. (Even then, he can continue to introduce conservative principles in the form of conservative dissents to majority liberal decisions.)

DECISION PROCESSES: LAW VERSUS POLITICS OR INTERNAL VERSUS EXTERNAL? 2

Constitutional scholars continue to struggle toward adequate formulations of how constitutional decisions are made or should be made. On the one hand, scholars must concede the obvious role of Politics in judicial decisions – the ideological objectives and even partisan loyalties that justices represent. On the other hand, Constitutionalists aspire to preserve some role for Law – not only in academic theory, but also in judicial practice.

If the Constitution is fundamental, then judicial interpretation of the Constitution is pivotal. A persuasive normative theory of how justices should go about interpreting the Constitution could have significant practical impact. As a result, according to a skeptical recent critique by one practicing judge, academic theories of constitutional interpretation become more and more complex, leading the critic to call for more modesty on the part of both academics and judges. (For a major recent reformulation of constitutional interpretation, see Balkin 2011 and 2011. For the critique of academic theorizing, see Wilkinson 2012.)

Obviously a verifiable empirical political science theory of how judicial outcomes actually occur would also be valuable. Here analysis long pitted Law against Politics, emphasizing politics. Early versions interpreted judicial outcomes as the expression of the justices’ ideological attitudes, later versions as the result of justices’ strategic formation of political coalitions.

Recently analysis has further shifted, toward Internal versus External, both of which include both some Law and some Politics. Thus internal (institutional) factors include not only constitutional doctrine but also the small-scale politics between justices. External (environmental) factors include not only political influences but also debates over rival constitutional doctrines.

Law versus Politics 2.1

Historically, the chronicling and interpretation of American constitutional development was left largely to legal scholars. Their accounts emphasized legal factors: the text of the Constitution and the complex and changing ways in which the Supreme Court has interpreted it. The basic thrust has been to take seriously the claimed commitment of the Supreme Court to impartial justice based on sound legal principles. A particular claim is that it is the Constitutional role of the Supreme Court to defend minorities against abuse by majorities. Accordingly, this perspective emphasizes the extent to which the Supreme Court “stands up to” the president and congress, “correcting” them when they exceed their constitutional powers. In the short run, the Supreme Court may appear to be “undemocratic,” but in the long run it is defending the basic rules of constitutional democracy in a democratic republic. This approach is a quite intellectual, legalistic, and idealistic. It does not explain the often tortuous reasoning and political expediency of many Supreme Court decisions, past and present.

Accordingly, as political scientists gradually turned their attention to the Supreme Court, they embraced a “legal realism” emphasizing political factors. In extreme versions of this approach, the Supreme Court is little more than a “little legislature,” a small but privileged arena for making public policy. As such, the Court is simply part of ongoing struggles between RIVAL political coalitions who appoint their partisan representatives to the Court when they have the chance. In this account, the Supreme Court is quite aware of current public opinion on the issues that it decides. In fact, some argue that Court decisions often reflect current public opinion more accurately than do the acts of president or congress (Rosen 2006). This approach expands the scope of institutions to place the Supreme Court in its larger political context. It also expands the scope of legal ideology to find many important current constitutional principles not only in legal interpretations of the Constitution but also in legal articulations of extra-Constitutional principles currently held by political society (Tribe 2008).

Obviously this approach is realistically political, which is an important analytical gain. However, this approach can easily become merely cynical, dismissing Supreme Court legal reasoning as nothing more than arbitrary obscurantist rationales for particular policy positions. Such an extreme version of realism potentially undermines both officials’ performance of constitutional functions and public trust in constitutional institutions. Moreover, although often tempting and no doubt sometimes largely correct, sometimes the realist view is not persuasive. It can always find some policy interest that might explain a particular decision. Furthermore, some Court decisions – such as the 2012 decision on health reform – clearly are not simply the direct expression of partisan policy preferences.

Internal versus external 2.2

Accordingly, a new synthesis is emerging that distinguishes and integrates internal and external factors (Keck 2007). Here the internal side of the argument is not the old legalist claim that decisions are largely determined by abstract doctrines: most observers have concluded that American constitutional law involves many general principles whose usual upshot is basically indeterminate, requiring judges to make conscious and definite choices, and even to invent new principles. Instead the new internal argument is that judges – particularly judges with careers sufficiently distinguished to carry them to the Supreme Court – are strongly socialized to take their professional role as judges very seriously. They earnestly try to relate current decisions to previous Supreme Court reasoning, an effort that often will not easily produce decisions fully in line with the current policy preferences of whatever party appointed those justices. The Chief Justice in particular may take seriously his responsibility to maintain the Court’s reputation for remaining above partisan politics, as Roberts may ave done in the 2012 decision on health reform.

The Author of this Blog is not a Constitutional scholar, so should refrain from professional comment on how the Court interprets the Constitution. Nevertheless, some testimony from the Author may interest Chinese readers, not as expert judgement but as citizen reaction. In brief, some of the Court’s recent hijinks severely strain intellectual credibility. This is true above all of the patently patisan suspension of the 2000 presidential election by a Republican Court to award the presidency to the Republican candidate. A second strain on credibility is judicial activism by ostensible opponents of judicial activism. In postwar American politics, undue “activism” was mostly a charge hurled by conservative politicians at the then liberal court. But recently a now conservative court has become equally activist. A third strain on credibility is patently original interpretations by professed originalists. (That is, the interpretations are more personally “original” than based on the “original” Constitution, whatever that was.) For example, Justice Scalia is entitled to be an activist if he wishes or an originalist if he wishes, but he cannot credibly claim that his alleged originalism legitimates his obvious activism.

Thus, increasingly, the Supreme Court functions NOT like a court but like a third policy-making branch of government. Increasingly, the Court decides cases not by consensus but by majority vote between conflicting ideological or partisan positions. Increasingly, individual justices even write their own individual opinions. Ideological polarization has spread from the elected branches to the judiciary.

CONCLUSION: POLITICAL CONFIGURATION

Relating constitutional deliberations to political context, astute liberal constitutional scholar Mark Tushnet has noted the different roles that the Court can play depending on whether, in ideological and partisan terms, the Court itself is united or divided and whether American national politics is united or divided (2005/2006, pages 341-345). He was thinking of periods of many years or some decades, which places his analysis somewhere between short-run Situation and mid-run Regime, largely in the zone of transition between regimes. We note his analysis here because it is useful for analyzing short-run Situation, and because political Configuration can switch back and forth between united and divided in the short run.

During extended periods of “united” government (all branches of government controlled by the same orientation), the Supreme Court tends to play an obviously “collaborative” role, working “actively” together with president and congress to demolish an old political and constitutional regime and build a new one. During extended periods of “divided” government (the presidency and congress controlled by different orientations), a court “united” under one orientation could indulge in confrontation with any branches of government under the opposite orientation, possibly provoking a constitutional “crisis” (not necessarily a bad thing).

However, under divided government, even a united court is likely to act more “restrained.” One can even regard that as the form of Court “collaboration” appropriate to a political configuration of divided government. A divided president and congress (or a divided or polarized congress) can agree only on relatively modest measures, so judicial modesty is an appropriate counterpart. Nevertheless, Tushnet notes that a united Court needs a united government with which to collaborate, and may take judicial actions calculated to restore one, perhaps part of why in 2000 a conservative Court helped install a conservative president (241). Conversely, as Tushnet points out, the fact that under divided government the elected branches cannot agree on new legislation – or even on protecting old legislation – means that the Court can get away with narrowly interpreting or over-ruling old legislation, knowing that the elected branches are not in a political position to restore or replace it (343).

Tushnet’s brief analysis of Political Configuration is a great help. Nevertheless, legal journalism and political rhetoric still rely largely just on the contrast between “judicial restraint” and “judicial activism.” More serious analysis of American Constitutional Politics must do better. As noted above, those terms originated in polemics by conservatives against what liberal Courts achieved under mostly united liberal government. Accordingly, those terms should be applicable to the possible role of a conservative Court under united conservative government. However, it is less clear what those terms are supposed to mean when applied to Courts under divided government.

Under divided government, usually the most the Court can do vis a vis other branches of other persuasions is to make relatively marginal adjustments to old laws and policies (let’s call it “judicial contrarianism”). Moreover, the Court can choose to address policy domains in which previous Courts have not intervened for some time (let’s call it “judicial adventurism”). Conversely, the Court can “demote” some old laws and policies by declining to review and renew them (let’s call it “judicial neglect”). Clearly the increasingly conservative Rhenquist and Roberts Courts became increasingly contrarian. It appears that the Roberts Court may now be becoming increasingly adventurist. (Legal journalists neglect the role of neglect.)

REFERENCES AND READINGS: CONSTITUTIONALISM, SHORT-RUN

On current cases see www.scotusblog.com and http://blogs.findlaw.com/supreme_court/

Bailey Michael A. and Forrest Maltzman 2011. The constrained court: Law, politics, and the decisions justices make. Princeton NJ: Princeton University Press, 216 pages.

Balkin, Jack M. 2011. Living originalism. Cambridge MA: The Belknap Press of Harvard University Press, 474 pages.

Balkin, Jack M. 2011. Constitutional redemption: Political faith in an unjust world. Cambridge MA: Harvard University Press, 298 pages.

Baum, Lawrence 2006. Judges and their audiences: A perspective on judicial behavior. Princeton NJ: Princeton University Press, 231 pages.

Biskupic, Joan and Elder Witt 1990/1997. The Supreme Court at work. Washington DC: CQ, 402 pages.

Black, Ryan C. Timothy R. Johnson and Justin Wedking 2012. Oral arguments and coalition formation on the U.S. Supreme Court: A deliberative dialogue. Ann Arbor MI: University of Michigan Press, 141 pages.

Brenner, Saul and Joseph M. Whitmeyer 2009. Strategy on the United States Supreme Court. New York NY: Cambridge University Press, 196 pages.

Clayton, Cornell W. And Howard Gillman eds. 1999. Supreme Court decision-making: New institutionalist approaches. Chicago IL: University of Chicago Press. 344 pages.

Dahl, Robert 1957. "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker." Journal of Public Law 6, 279-295.

Dickson, Del ed. 2001. The Supreme Court in conference, 1940-1985: The private discussions behind nearly 300 Supreme Court decisions. New York NY: Oxford University Press, 1006 pages.

Garbus, Martin 2002. Courting disaster: The Supreme Court and the unmaking of American law. New York NY: Times Books, 322 pages.

Garbus, Martin 2007. The next 25 years: The new Supreme Court and what it means for Americans. New York NY: Seven Stories Press, 244 pages.

Geyh, Charles ed. 2011. What’s law got to do with it? What judges do, why they do it, and what’s at stake. Stanford CA: Stanford Law and Politics, 355 pages.

Hammond, Thomas H., Chis W. Bonneau and Reginald S. Sheehan 2005. Strategic behavior and policy choice on the U.S. Supreme Court. Stanford CA: Stanford University Press, 299 pages.

Hansford, Thomas G. And James F. Spriggs II 2006. The politics of precedent on the U.S. Supreme Court. Princeton NJ: Princeton University Press, 155 pages.

Johnson, Timothy 2004. Oral arguments and decision making on the United States Supreme Court. Albany NY: State University Press of New York, 180 pages.

Keck, Thomas M. 2004. The most activist supreme court in history: The road to modern judicial conservatism. Chicago IL: University of Chicago Press, 378 pages.

Keck, Thomas M. 2007. “Party, policy, or duty: Why does the Supreme Court invalidate federal statutes?” American Political Science Review 101, 2 (May), 321-332.

Koppelman, Andrew 2013. The tough luck Constitution and the assault on health care reform. New York NY: Oxford University Press, 182 pages.

Maltzman, Forest, James F. Spriggs II, and Paul Wahlbeck 2000. Crafting law on the Supreme Court. New York NY: Cambridge University Press, 206 pages.

Maveety, Nancy ed. 2003 The pioneers of judicial behavior. Ann Arbor MI: University of Michigan Press, 433 pages.

Mourtada-Sabbah, Nada and Bruce E. Cain eds. 2007. The political question doctrine of the Supreme Court of the United States. Lanham MD: Rowman & Littlefireld, 273 pages.

NYT=New York Times

Pacelle, Richard L. Brett W. Curry and Bryan W. Marshall. 2011. Decision making by the modern Supreme Court. New York NY: Cambridge University Press, 278 pages.

PoCo = Politico

Posner, Richard A. 2008. How judges think. Cambridge MA: Harvard Univesity Press, 387 pages.

Roosevelt, Kermit III 2006. The myth of judicial activism: Making sense of Supreme Court decisions. New Haven CN: Yale University Press, 262 pages.

Rosen, Jeffrey 2006. The most democratic branch: How the courts serve America. New York NY: Oxford University Press, 238 pages.

Toobin, Jeffrey 2012. The Oath: The Obama White House and the Supreme Court. New York NY: Doubleday, 352 pages.

Segal, Jeffrey Allan and Harold J. Spaeth 1993. The Supreme Court and the attitudinal model. New York NY: Cambridge University Press, 390 pages.

Segal, Jeffrey A. And Harold J. Spaeth eds. 2002. The Supreme Court and the attitudinal model revisited. New York NY: Cambridge University Press, 459 pages.

Segal, Eric 2012. Supreme myths: Why the Supreme Court is not a court and its justices are not judges. Denver CO: Praeger, 219 pages.

Sunstein, Cass R. 1999. One case at a time: Judicial minimalism on the Supreme Court. Cambridge MA: Harvard University Press, 290 pages.

Sunstein, Cass, David Schkade, Lisa M. Ellman, and Andres Sawicki 2006. Are judges political? An empirical analysis of the federal judiciary. Washington DC: Brookings Institution Press, 177 pages.

Sunstein,, Cass 2009. A Constitution of many minds: Why the founding document doesn’t mean what it meant before. Princeton NJ: Princeton University Press, 225 pages.

Tamanaha, Brian Z. 2010. Beyond the formalist-realist divide: The role of politics in judging. Princeton NJ: Princeton University Press, 252 pages.

Tribe, Laurence H. 2008. The invisible constitution. New York NY : Oxford University Press, 278 pages.

Tushnet, Mark 2005/2006. A Court divided: The Rehnquist Court and the future of Constitutional law. New York NY: Norton, 398 pages.

WaPo=The Washington Post

Wilkinson, J. Harvie III 2012. Cosmic constitutional theory: why Americans are losing their inalienable right to self-governance. New York NY: Oxford University Press, 161 pp.

Wrightsman, Lawrence S. 2006. The psychology of the Supreme Court. New York: Oxford University Press, 312 pages.

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DIMENSIONS OF POSTS

Importance of Post: ***** Big development. **** Small development. *** Continuing trend.

Scope of Post: USA only. USA-PRC. USA-other.

Type of Process: Elite power struggle. Elite policy politics. Mass participation.

Type of Treatment: Current commentary. Comprehensive background. Academic analysis.

DIMENSIONS OF POLITICS

Policy Sectors: Security. Economy. Identity

Spatial Levels: Supranational. National. Subnational

Temporal Periods: Shortrun. Midrun. Longrun

STANDARD TOPIC TAGS (BIAOQIAN)

SECURITY

Defense

Diplomacy

Intelligence

Presidency (national security team)

Homeland security

State coercion: Police & Prisons

Citizen violence: Collective riots & Individual harm

ECONOMY

Climate change

Trade & Investment

Fiscal policy

Macroeconomy

Energy & Environment

Business

Employment & Income

IDENTITY

Propaganda

Immigration

Ideology

Race & Ethnicity

Gender & Age

Moral regulation

Alternative lifestyles

SUPRANATIONAL

Global

United Nations

International regimes

Subglobal regions

Major foreign powers

Neighboring countries

Cross-border regions

NATIONAL

Legislature & commissions

Executive & bureaucracy

Judiciary & Constitution

Parties

Interests & advocates

Media

Public opinion

SUBNATIONAL

Subnational regions

States

Metropolitan regions

Cities

Counties

Communities & Associations

Citizen participation (elections, activism)

SHORTRUN (Current dynamics)

This week

Past few weeks

Next few weeks

Past few months

Next few months

Past few years

Next few years

MIDRUN (Foreseeable future)

Variables

Cycles

Generations

Regime shift

Transformations

Regime change

Parameters

LONGRUN (History, evolution)

American political development

Comparative political development

Longrun economic growth

Longrun social history

Longrun cultural change

Major civilizations

Human evolution

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