130622

　　AMERICAN CONSTITUTIONALISM: MID-RUN REGIMES

　　From New Deal toward Market State?

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　　DIMENSIONS OF POLITICS DIMENSIONS OF POSTS

　　Sectors: All Importance: ****

　　Level: National Scope: USA only

　　Period: Middle run Process: Elite politics.

　　MAIN TOPIC: CONSTITUTIONALISM Treatment: Background. Analysis.

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　　MID-RUN DYNAMICS 1

　　PROGRESSIVE RISE AND DECLINE 2

　　CONSERVATIVE COUNTER-ATTACK 3

　　FUTURE DIRECTIONS 4

　　INSTITUTIONS: THE JUDICIARY, COMPARISON, INTERACTION 5

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SERIES

　　This Post is the third in a series on AMERICAN CONSTITUTIONALISM. 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” gradually constituted by ordinary legislation? What is the role of the Judiciary in relation to Other institutions?

　　The first Post stated general Themes, the second discussed the current Situation (short-run, individual). This Post treats the rise and decline of multi-decade constitutional REGIMES (mid-run, institutional). A fourth Post will address overall historical Development, both constitutional and political (long-run, systemic).

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　　130622

　　AMERICAN CONSTITUTIONALISM: MID-RUN REGIMES

　　This Post discusses “middle-sized” units for understanding American constitutional politics, particularly the rise and decline of multi-decade constitutional-political REGIMES. The introduction notes some main dimensions and dynamics of such middle-sized units. The second section sketches the rise and decline of the 1930s-1970s New Deal / Great Society constitutional regime. The third section sketches 1980s-2010s conservative efforts to demolish that regime and construct a successor. The fourth section notes current struggles over the future regime. The conclusion raises middle-sized questions about Institutions. The References contain many Readings relevant to “middle sized” analysis of American constitutional history – too many to cover in this Post but that this Blog hopes to explore in the future.

　　The previously separate academic disciplines of constitutionalism, political science, and political history are currently interacting to produce a new synthesis on American constitutional politics at all scales of analysis. The most interesting constitutionalists have been influenced to a remarkable extent by political science “historical institutionalism,” which has identified the multi-decade “regime” as a unit of analysis. At the middle-sized scale of analysis, the regime unit facilitates comparing similar phases of different political cycles: construction, decline, crisis and – again – reconstruction (Skowronek 1993). Particular attention goes to “reconstructive” presidents such as Lincoln and Roosevelt who (re)found new regimes (Whittington 2007, 49-81). (On political regimes, see Posts 130504, 130511, and 130518.)

　　The heuristic assumption that the USA has experienced several constitutional regimes is more informative than thinking that USA constitutionalism has been timelessly uniform. Nevertheless, many details of such “regime analysis” remain to be clarified, such as more exact identification of different regimes and more exact specification of relationships between constitutional and political regimes. In one recent account, the USA has had three main constitutional regimes, starting from the 1780s Founding, the 1860s Reconstruction, and the 1930s New Deal (Ackerman 2000). A more complex account allows for additional shifts starting around 1800 (rise of parties), around 1900 (rise of progressivism), and around 1980 (rise of conservatism). (Tushnet 2009)

　　Currently the best introduction to the mid-run dynamics of American constitutional-political regimes is Tushnet 2010 Why the Constitution matters . (It is nuanced but clear, partly because it omits details of constitutional doctrine included in Tushnet 2009 ... contextual analysis.) Tushnet explains that the Constitution matters mostly through shaping how politics is conducted, particularly through parties. In turn, partisan politics shape how the Constitution is interpreted – by jurists, politicians, and publics. As Mark Graber has put it, constitutionalism is not a way of separating law from politics, but a particular way of conducting politics (2013). Thus political struggles to build, demolish, and rebuild constitutional regimes are a central and normal part of American politics. Ongoing research is clarifying that such regime change is a matter not merely of sheer partisan electoral power, but also of the more gradual construction of institutions and ideas.

　　

　　MID-RUN DYNAMICS 1

　　A CONSTITUTIONAL REGIME is a concatenation of constitutional doctrines and political forces that become entrenched and persist for some decades. This Post will focus mostly on the middle-scale TEMPORAL dynamics surrounding the rise and decline, demolition and reconstruction of such regimes (first four sections). At the middle-sized scale of analysis, the STRUCTURAL focus is Institutions: how they work, how they interact with each other, and how one can evaluate their effectiveness (Conclusion). The middle-sized FUNCTIONAL focus is bodies of doctrine governing major Domains of politics and policy, the main focus of most analyses of constitutional regimes by legal scholars.

　　Thus as noted in the previous Post (130615), to understand particular Supreme Court decisions one must relate them to ongoing judicial struggles over the series of cases that establish constitutional doctrine governing specific Domains of power and policy. Judicial struggles over such “constitutional orders” last years, even decades. Principles advanced in one domain can become relevant to other domains. The ensemble of doctrines that the Supreme Court and other institutions advance during a particular era constitutes a dominant “constitutional regime.” Such a regime may strive for consistency across domains, but probably will not achieve it. The main reason is that the ensemble of doctrines is dictated not by philosophy but by politics. A dominant party has to provide whatever policies are demanded by different components of its electoral coalition, under constitutional doctrines that can rationalize whatever Court decisions are needed.

　　Thus constitutional politics is in part motivated and constrained by the POLITICAL CONFIGURATION of national politics. What is the distribution of ideological orientations and partisan affiliations across branches of government and within the public? Are the Constitutional branches united under one ideology and party, or divided? What about the main extra-constitutional institutions of interests, media, and public opinion? Political Configuration can change from election to election, but this Post tracks what can happen when a configuration dominates for most of several decades.

　　When a dominant party unites the elected branches of government over a long period, sooner or later the Supreme Court is likely to collaborate with that party through judicial ACTIVISM in helping construct whatever constitutional regime that party wants. In this Post, the main example of a UNITED constitutional-political regime is liberal Democratic dominance from the 1930s to the 1970s. When rival parties divide the elected branches, preventing decisive action by legislature or executive, again the Court is likely to collaborate, but now in the sense of exercising more judicial RESTRAINT. In this Post, the example of a DIVIDED regime is the period of Republican challenge to former Democratic dominance, from the 1980s into the 2010s.

　　The main mechanism that aligns the unelected judiciary with the elected branches is the SELECTION of justices through presidential nomination and Senate confirmation. The previous Post noted that this is one of the main short-run spectacles that call the judiciary to the attention of the American public. Here we note the cumulative role of the replacement of judges in changing constitutional regimes. Of course, at this intermediate time scale, one obvious problem with the American system is life tenure for those federal justices who are appointed by the president, a practice that NO other country in the world has adopted. When the Founders prescribed life tenure, people lived shorter lives and presidents appointed the “older and wiser” as justices. Now people live much longer and presidents, to prolong their influence after they leave office, appoint younger justices. The result is that periodically the Supreme Court becomes drastically “out of sync” with current politics – even as the world changes faster and faster.

　　(On selection, see Scherer 2005 Scoring points, Epstein and Segal 2005 Advice and consent, Nemacheck 2007 Strategic selection, Binder and Maltzeman 2009 Advice & dissent, Gibson and Caldeira 2009 Citizens, courts and confirmations, and Steigerwalt 2010 Battle over the bench [lower courts].)

　　Of course, regime analysis cannot remain simple. A 2007 article by political scientist Thomas Keck reviews the adoption of the “regime politics” model from political science by constitutional scholars. Keck welcomes the adoption, but warns that the model overstates the influence on judicial decision-making of “external” political factors at the expense of “internal” institutional factors, already overstated in much recent analysis. Another 2007 article by Keck – “party, policy, or duty...?” – makes related points. Sometimes the Supreme Court’s overruling of a federal statue reflects partisan or ideological differences between the Court and congress. More often, however, it reflects differences in institutional responsibilities. The legislators who enacted the statute and the justices who overruled it may come from the same politically dominant coalition, but they may reflect different balances between the factions within that coalition. Analogously, Crowe 2012 notes that a dominant coalition may have several goals that may conflict – goals of partisan power, ideological policies, and sheer good judicial performance.

　　

　　PROGRESSIVE RISE AND DECLINE 2

　　The rise of the New Deal regime began in the 1930s with President Roosevelt’s interventions in the economy to fight the Great Depression. A conservative Supreme Court at first blocked Roosevelt’s interventions, attempting to continue 1880s-1920s classical liberal principles according to which government had little authority to intervene in private economic activity. In the standard progressive account, political pressure soon forced the Court to beat a strategic retreat, allowing Roosevelt to revolutionize the nation’s constitutionalism (Leuchtenberg 1995). Revisionist accounts now argue that justices had begun rethinking constitutional law well before the New Deal (Cushman 1998, White 2000). (Justices had also begun modernizing judicial institutions.)

　　At first, progressive constitutional thinkers avoided “rights,” because the rights protected by classical-liberal constitutionalism were the rights of employers not workers. As a practicing politician, Roosevelt tackled this head on, advocating more economic rights for ordinary Americans. In fact, Roosevelt based much of his program not on the main text of the Constitution but instead on the Bill of Rights, even proposing a second Bill of new economic Rights (Sunstein 2004). Under Roosevelt’s appointments, the Court too soon shifted its attention from government powers to individual rights, eventually including also non-economic rights, particularly non-discrimination.

　　Initiating the progressive regime in the 1930s required not only reinterpreting the formal 1787 Constitution, but also extensively supplementing it with a new informal constitutional regime of “super-statutes” embodying progressive purposes and principles (Estridge and Ferejohn 2010). Congress passed landmark progressive legislation such as that establishing guaranteed pensions for employed workers (Social Security). The struggle for progressive principles resumed in the 1960s under President Johnson (the Great Society), resulting in more super-statutes establishing still more individual rights (civil rights, voting rights, housing rights). (Powe 2000)

　　Thus from the 1950s through the 1970s, the Court was quite activist in a progressive direction, strengthening individual rights. When most states had joined an emerging progressive national consensus, the Court could force that consensus on the minority of conservative states that remained recalcitrant. However, famously, such progressive activism provoked a rising backlash from conservative publics, who fumed at “big government” extensions of “social rights” that violated “constitutional rights,” particularly “property rights.” Conservative backlash helped elect conservative presidents, who gradually appointed conservative judges, who eventually became activist in a conservative direction. Helping this conservative counter-attack, since 1968 Republican presidents have had many more opportunities to appoint justices than have Democratic presidents.

　　Nevertheless, the terms “progressive versus conservative” do not suffice to explain the ensuing rather mixed record of Supreme Court decisions. From the 1980s, increasingly conservative courts have reaffirmed some “individual” rights (free speech for corporations). They have even added some new individual rights (gun ownership, sexual preference). However, they have begun narrowing other rights (abortion, anti-discrimination, criminal procedure, secularism). They even resumed challenging the power of the federal government to supercede state regulation (“new federalism”). Part of the explanation for this mixed record is that there have been two kinds of Republican conservatives on the court. Moderate conservatives have wanted to roll back only some liberal decisions only part-way, meanwhile protecting what they regard as important “modern-liberal” individual rights (formerly O’Connor and still Kennedy). Extreme conservatives want to roll back liberal statism as far as possible and substitute “new conservative” principles of minimal government intervention and maximal individual responsibility (Thomas, Scalia, Alito, and Roberts).

　　However, even the terms “moderate versus extreme” conservative remain too blunt to capture the shifts and subtleties in the constitutional thinking involved. For example, substantively, mainstream constitutionalism gradually adopted a right to “personal autonomy” (initially called “privacy”) that both progressives and conservatives could apply in various ways. Both progressives and conservatives could draw in various ways on classical liberalism, modern liberalism, and other variants of liberalism such as economic laissez faire and general libertarianism. Procedurally, both progressives and conservatives could invoke various aspects of various theories of how the Court should interpret the Constitution and when and why it should intervene (neutralism, democratism, originalism, majoritarianism).(See Tushnet 2009, chapter six. Also Engel 2011.)

　　All of which illustrates Keck’s point about the importance of “internal” factors. One cannot entirely reduce constitutional construction simply to “external” partisan demands that the Court legitimate particular party policies. The doctrinal side of a constitutional regime has a life of its own, which it is the job of justices to nurture.

　　

　　CONSERVATIVE COUNTER-ATTACK 3

　　It is astonishing to many progressives that the extreme conservative Republican justices now on the Supreme Court (Scalia, Thomas, Roberts, Alito) aspire to reverse such fundamentals of recent progressive American governance as the strengthening of individual rights and the shifting of power to the national level. Even more astonishing is that those conservative judges are now actually succeeding! Almost equally astonishing, most Americans – and even many political commentators – evidently do not realize how completely and rapidly this conservative success is occurring. How is it possible for a few Supreme Court justices to stage such an audacious counter-revolution?

　　The main answer is hard work over many decades by many conservatives (Teles 2007, Avery and McLaughlin 2013). Starting in the 1950s, conservatives realized that New Deal liberals dominated the government, media, and academia. Relative to this liberal mainstream, conservative ideas appeared reactionary and even silly. So, with the help of some extremely wealthy patrons, conservatives began to build a counter-mainstream. They funded conservative think tanks and academic departments to develop intellectually respectable conservative ideas, They funded conservative media and social organizations to propagate those ideas. Moreover, conservative Republican politicians won increasing numbers of elections and conservative Republican presidents succeeded in appointing an increasing number of conservative jurists to the Supreme Court.

　　So it is NOT just a few conservative justices on the Supreme Court who are achieving counter-revolution by themselves. They are the “tip of the iceberg” of a huge conservative apparatus of institutional and popular support – about half the American electorate. Nevertheless, those justices ARE crucial, since they are best placed to overturn previous liberal legislation, overrule previous liberal principles, and install conservative legal principles instead.

　　The story has another twist. When liberals dominated the Supreme Court and issued liberal decisions – such as requiring desegregation of schools and allowing women to terminate problematic pregnancies – conservatives condemned such “judicial activism” and the “legislative” content of Court decisions. Conservatives argued then, and continue to argue now, that judges should exercise “judicial restraint,” leaving active legislation to elected representatives. Nevertheless, when conservatives achieved domination of the Supreme Court, they became quite activist themselves. Indeed, the most astute analysis argues that – partly through competition between moderate conservatives and extreme conservatives – the conservative Rhenquist Court was The most activist Supreme Court in history (Keck 2004).

　　

　　FUTURE DIRECTIONS 4

　　In the early 21st century, “old Democrats” are attempting to preserve the old progressive constitutional regime entirely. “New Democrats” are attempting to adapt it to a neoliberal, market-oriented age. Moderate conservatives have attempted to roll back what they regarded as the excesses of the progressive regime. Extreme conservatives are attempting to demolish it and replace it. Some progressives fear a wholesale repudiation of progressive principles (e.g., Garbus 2002 and 2007). Others see simply a shift toward more modest application of progressive principles: greater prudence in implementing the civil remedies and social rights established by progressive constitutionalism, little if any extension of new ones (Sunstein 1990, Tushnet 2003). Either way, the rightward constitutional shift largely reflects the rightward political shift of political parties, an exaggeration of only some rightward shift in the public.

　　Thus, for the future direction of America’s constitutional regime, the main question now is: do conservative jurists wish merely to correct excesses in the application of progressive principles, or do they wish to repudiate the principles themselves? Some commentators have doubted that even a very conservative Court would attempt to repudiate progressive principles that most Americans have come to regard as part of their constitutional heritage. Since the 1930s the Court has avoided large issues of federal power to regulate the economy, which progressive Americans have assumed had become constitutional. “Judicial minimalism” may persuasively describe many decisions of the 1986-2005 Rhenquist court, particularly those decisions on social issues in which moderate conservatives sided with moderate liberals. (Sunstein 1999; Tushnet 2003, 2005)

　　Nevertheless, judicial minimalism may NOT describe some of the more activist recent extreme-conservative decisions of the Roberts Court. Moreover, in retrospect, some apparently modest early Roberts decisions may turn out to have established precedents for later more activist decisions (Tushnet 2013). The Roberts Court may be gradually edging toward still more conservative interpretations, not only on individual civil rights as impacted by subnational governments, but also on individual economic rights, even as impacted by the national government. Such conservative activism will have strong implications, not only for individuals and their rights, but also for the institutional powers of other branches and levels of government. The extreme-conservative Roberts Court is now busy writing its principles into constitutional law, to enable the Court to revisit basic issues.

　　In principle, to the extent that such issues can be defined as Constitutional, and to the extent that the Supreme Court has “final say” over the Constitution, the Roberts Court COULD possibly succeed in gradually dismantling much of the New Deal, as the more extreme conservatives on that court avowedly wish to do. Allegedly the resulting new regime would return to the “original” 1787 Constitution. Actually, to some extent, it would simply return to the classically liberal interpretations of the pro-business Courts in 1880s to 1920s. However, to some extent, the result would likely also be some new form of pro-business “market state” (Bobbitt 2002, 2009). From a progressive point of view, such a regime could be an undemocratic, neo-liberal dystopia dominated by business interests and suffering from economic inequality.

　　In practice, the current extreme-conservative Supreme Court may NOT have the last word. The congress and president – and lower courts – also have some role, even in interpreting the formal Constitution, but even more so in legislating the informal “constitution” that in practice governs most matters. Also, the Court seldom prevails for long if it moves too far outside the political mainstream. The current extreme-conservative Court risks provoking progressive publics to mobilize to elect progressive presidents who will gradually appoint progressive justices who will restore progressive principles. Probably John Roberts will remain Chief Justice for decades, but he will not necessarily continue to have a conservative majority among his justices. If Democrats succeed in holding together the new electoral coalition that Obama has assembled (youth, minorities, women), Republicans may not achieve unified government for the foreseeable future. Then the younger Bush’s appointments of extreme-conservative justices Alito and Roberts could look more like an attempt to defend an outgoing conservative challenge than an attempt to complete the establishment of a new conservative constitutional regime.

　　INSTITUTIONS: THE JUDICIARY, COMPARISON, INTERACTION 5

　　In addition to tracing the rise and decline of Regimes, “middle sized” analysis of American constitutionalism should pursue Institutional questions about exactly how different Regimes work. Here a first question is the functioning of the judiciary and legal system as a whole. Another aim is to compare the competence of different institutions – judicial and otherwise – at different policy tasks. Ideally one would allocate particular tasks away from the Institutions least able to perform them and toward the Institutions best able to perform. A third problem is how to anticipate the policy upshot of the interaction between various American institutions – not only the three Constitutional branches of government but also major extra-Constitution political institutions such interests, media, and public opinion. Here we can only note those questions and some relevant literature. Fuller discussion will require another whole Post. (A textbook that raises many of these issues is Pacelle 2002.)

　　Describing the judiciary in more depth 5.1

　　About the judiciary itself, many of the priority tasks are merely descriptive: getting beyond preoccupation with the Supreme Court to some attention to the rest of the federal judiciary and its role in the judicial and legal systems as a whole.

　　A helpful step toward peering downward within the judiciary is Hall 2011 The nature of Supreme Court power. Court decisions are not self-implementing. Hall argues that the Court is consistently successful at actually altering the behavior of state and private actors when its decisions can be implemented by lower courts. When implementation is through non-court actors, success depends on the popularity of the decision.

　　A further step would equip lay observers with a roadmap of the federal courts immediately beneath the Supreme Court. Any observer of American politics knows which parts of the USA elect liberal or conservative national representatives or state governors. In contrast, only legal journalists know much about the political complexion of the different regional federal courts and those journalists do not convey much of that information to the public.

　　From there, one needs to go into further detail. How does the judiciary work at the state level? (Tarr 2012, on balancing independence and accountability. On independence see also Peabody ed. 2011 and Handelsman 2012.) What new tasks are courts undertaking? (Higgins and Mckenem eds. 2009 Problem-solving courts and Baum 2011 Specializing the courts.) What is the relationship between the court system and the legal system? (Segal, Spaeth and Benesh 2005) To what extent have legislatures delegated the enforcement of public regulation to private lawsuits? (Farhang 2010)

　　Comparing the policy competence of different institutions 5.2

　　Another task for “middle-sized” analysis of American constitutionalism is to compare the distinctive competences of different institutions: competence not just for interpreting the Constitution, but even moreso for arriving at and actually implementing policies that are good (practical and just).

　　Empirical comparison of institutional competence is all the more necessary because the Supreme Court has made it the basis of some of its own rulings. For example, in the 2013 voting rights case, the Court opined that congress had failed to update its information about the extent to which racial discrimination in access to voting still prevailed in the classically discriminatory states. The Court declared on its own authority – without obvious research – that by now the problem has been solved, at least to the extent that extraordinary measures such as federal supervision of state voting arrangements is no longer appropriate. Congress had in fact held extensive hearings on the matter and had concluded that obstacles to voting were still severe and that relevant publics still demanded protection.

　　More broadly, issues of institutional competence have been raised by constitutional entrepreneurs in order to help propel transitions between constitutional regimes. In the decades around 1900, jurists practiced a developed body of classically liberal constitutional doctrines in which jurists were experts, bolstering the plausibility of leaving constitutional law to courts. By the 1930s, constitutional issues increasingly concerned social rights and the substantive impact of discrimination on society. That provided progressives a rationale for taking constitutional law away from the courts and giving it to legislatures, who had greater capacity to research social facts and register public opinion. (Tushnet 2009, chapter six.)

　　Meanwhile, some conservative legal scholars have performed an important service by empirically assessing the actual impact of progressive policies. Many of those policies had some good effects, but many also had unanticipated side effects that actually exacerbated the problems that those policies were intended to solve. Any policy is likely to have less effect, or different effects, than anticipated; therefore the actual effects of policies should be monitored and evaluated. That too sounds obvious, but evidently progressives have tended to simply assume that progressive solutions – including judicial remedies – actually work. (See Powers and Rothman 2002.)

　　Understanding the policy upshot of interactions between institutions 5.3

　　A third institutional task for “middle-sized” analysis of American constitutionalism is to increase understanding of the policy upshot of interactions between institutions. Optimizing those interactions was, after all, a main purpose of the 1787 Constitution. Usually the resulting “checks and balances” are thought of as a negative scheme for preventing rash action, but it was also a positive scheme for promoting wise deliberation. In any case, one needs a more positive scheme for assessing the effectiveness of governance. (On the negative side, see Ethridge 2010 The case for gridlock. On the positive role of judicial review, see Zurn 2007 Deliberative democracy.)

　　Overall, a main question about the interactions of the judiciary with other institutions is whether the interactions are conflictual or cooperative. Most earlier literature emphasized conflict, often assuming a zero-sum struggle for power between branches, particularly when courts become involved in “politics,” regarded as inappropriate. Then political scientists began arguing that the elected branches have voluntarily chosen to empower the judiciary, in part because elected politicians are often happy to pass responsibility for deciding politically difficult issues on to the unelected judiciary (first noted by Graber 1993, later developed by Whittington 2007).

　　The most recent political science literature further emphasizes cooperation, arguing that the judiciary is fully part of politics, and that politicians ally with the judiciary for several broader reasons: not just to avoid responsibility, but to advance their power and policies and even just to promote good judicial performance (Crowe 2012).

　　Political science has a huge literature on the interaction between president and congress, a substantial literature on the interaction between either of those and the judiciary, but few accounts including all three branches at the same time. One hopes that formal modeling might help, but perhaps modeling three-player games is too difficult (“intractable”). Beyond the constitutional branches, there is only a little literature about the interaction between the Supreme Court and the extra-constitutional institutions of interest groups, media, and the public. (On Constitutional branches, see Devins and Whittington eds. 2005 Congress and the Constitution., Whittington 2007 on interactions with “reconstructive” presidents. On extra-constitutional institutions, for interests see Collins 2008 and Samuels 2004; for the press, see Mathewson 2011; for public opinion, see Friedman 2009 and Hoekstra 2003.)

　　A major interaction between institutions that is currently receiving much-needed academic and political discussion is the exercise of war powers. The Founders gave Congress the sole power to formally declare war, intending to force a deliberative dialogue over foreign policy between congress and president. However, since World War II, America’s informal constitution of statutes has assigned the president largely unilateral power over national security. The resulting lack of interbranch deliberation has produced a series of military disasters (Griffin 2013, Zeisberg 2013).

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　　REFERENCES AND READINGS

　　Avery, Michael and Danielle McLaughlin 2013. The Federalist society. How conservatives took the law back from the liberals. Nashville TN: Vanderbilt University Press, 294 pages.

　　Banks, Christopher P. and John C. Blakeman 2012. The US Supreme Court and the new federalism: From the Rehnquist to the Roberts Court. Lanham MD: Rowman & Littlefield, 348 pages.

　　Baum, Lawrence 2011. Specializing the courts. Chicago IL: University of Chicago Press, 281 pages.

　　Binder, Sara A. and Forrest Maltzeman 2009. Advice & dissent: The struggle to shape the federal judiciary. Washington DC: Brookings Institution Press, 198 pages.

　　Bobbitt, Philip 2008. Terror and consent: The wars for the twenty-first century. New York NY: Knopf, 688 pages.

　　Bobbitt, Philip 2002 The shield of Achilles: War, peace, and the course of history. New York NY: Knopf, 960 pages.

　　Chemerinsky, Erwin 2010. The conservative assault on the Constitution. New York NY: Simon & Schuster, 436 pages.

　　Collins, Paul M. Jr. 2008. Friends of the Supreme Court: Interest groups and judicial decision making. New York NY: Oxford University Press, 248 pages.

　　Crowe, Justin 2012. Building the judiciary: Law, courts, and the politics of institutional development. Princeton NJ: Princeton University Press, 295 pages.

　　Cushman, Barry 1998. Rethinking the New Deal Court : The structure of a constitutional revolution. New York NY: Oxford University Press, 320 pages.

　　Devins, Neil and Keith E. Whittington eds. 2005. Congress and the Constitution. Durham NC: Duke University Press, 320 pages.

　　Engel, Stephen M. 2011. American politicians confront the Court. New York NY: Cambridge University Press, 406 pages.

　　Epstein, Lee and Jeffrey A. Segal 2005. Advice and consent: The politics of judicial appointments. New York NY: Oxford Univesity Press, 180 pages.

　　Eskridge, William N. Jr. and John Ferejohn 2010 A republic of statutes: The new American constitutionalism. New Haven CN: Yale University Press, 582 pp.

　　Ethridge, Marcus E. 2010. The case for gridlock: Democracy, organized power, and the legal foundations of American government. Lanham MD: Lexington Books, 223 pages.

　　Farhang, Sean 2010. The litigation state: Public regulation and private lawsuits in the U.S. Princeton NJ: Princeton University Press, 302 pages.

　　Friedman, Barry 2009. The will of the people: How public opinion has influenced the Supreme Court and shaped the meaning of the Constitution. New York NY: Farrar, Straus and Giroux, 614 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.

　　Garrison, Arthur H. 2011. Supreme Court jurisprudence in times of national crisis, terrorism, and war: A historical perspective. Lanham MD: Rowman & Littlefield, 481 pages.

　　Gibson, James L. and Gregory A. Caldeira 2009. Citizens, courts and confirmations: Positivity theory and the judgments of the American people. Princeton NJ: Princeton University Press, 178 pages.

　　Gilman, Howard and Cornell Clayton 1999. The Supreme Court in American politics: New institutionalist interpretations. Lawrence KA: University Press of Kansas, 302 pages.

　　Graber, Mark 1993. "The nonmajoritarian difficulty: Legislative deference to the judiciary." Studies in American political development 7 (Spring), 35-73.

　　Graber Mark A. 2013. A new introduction to American constitutionalism. New York NY: Oxford University Press, 304 pages.

　　Hall, Kermit L., James W. Ely, Jr. And Joel B. Grossman eds. 2005. The Oxford companion to the Supreme Court of the United States, 2nd edition. New York NY: Oxford University Press, 1239 pages.

　　Hall, Matthew E. K. 2011. The nature of Supreme Court power. New York NY: Cambridge University Press, 248 pages.

　　Higgins, Paul and Mitchell B. Mckenem eds. 2009. Problem-solving courts: Justice for the twenty-first century? Santa Barbara CA: Praeger, 199 pages.

　　Hoekstra, Valerie J., 2003. Public reaction to Supreme Court decisions. New York NY: Cambridge University Press, 177 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.

　　Keck, Thomas M. 2007. "Party politics or judicial independence? The regime politics literature hits the law schools." Law & social inquiry 32,2 (Spring), 511-544.

　　Leuchtenburg, William E. 1995. The Supreme Court reborn : The constitutional revolution in the age of Roosevelt. New York NY: Oxford University Press, 350 pages.

　　Mathewson, Joe 2011. The Supreme Court and the press: The indispensable conflict. Evanston IL: Northwestern University Press, 501 pages.

　　Nemacheck, Christine L. 2007. Strategic selection: Presidential nomination of Supreme Court justices from Herbert Hoover through George W. Bush. Charlottesville: University of Virginia Press, 187 pages.

　　Pacelle, Richard L. Jr. 2002. The role of the Supreme Court in American politics: The least dangerous branch? Boulder CO: Westview, 18 pages.

　　Peabody, Bruce ed. 2011. The politics of judicial independence: Courts, politics, and the public. Baltimore MD: Johns Hopkins University Press, 334 pages.

　　Powe, L. A. Scot 2000. The Warren court and American politics. Cambridge MA: Belknap Press of Harvard University Press, 566 pages.

　　Powers, Stephen P and Stanley Rothman 2002. The least dangerous branch? Consequences of judicial activism. Westport CN: Praeger, 221 pages.

　　Rosen, Jefffey and Benjamin Wittes 2011. Constitution 3.0: Freedom and technological change. Washington DC: Brookings Institution Press, 271 pages.

　　Ryden, David K. ed. 2002 The Supreme Court and the electoral process. Washington DC: Georgetown University Press, 296 pages.

　　Samuels, Suzanne U. 2004. First among friends: Interest groups, the U.S. Supreme Court, and the right to privacy. Westport CN: Praeger, 300 pages.

　　Savage. David G. 2009. The Supreme Court and the powers of the American government, 2nd edition. Washington DC: Congressional Quarterly, 658 pages.

　　Scherer, Nancy 2005. Scoring points: Politicians, activists, and the lower federal court appointment process. Stanford CA: Stanford University Press, 272 pages.

　　Segal, Jeffrey A., Harold J. Spaeth, and Sara C. Benesh 2005. The Supreme Court in the American legal system. New York NY: Cambridge University Press, 409 pages.

　　Shugerman, Jed Handelsman 2012. The people’s courts: Pursuing judicial independence in America. Cambridge MA: Harvard University Press, 381 pages.

　　Skowronek, Stephen 1993. The politics presidents make: Leadership from John Adams to George Bush. Cambridge MA: Belknap Press, 526 pages.

　　Steigerwalt, Amy 2010. Battle over the bench. Senators, interest groups, and lower court confirmations. Charlottesville VA: Uinversity of Virginia Press. 257 pages.

　　Sunstein, Cass R. 1990. After the rights revolution : Reconceiving the regulatory state. Cambridge MA: Harvard University Press, 284 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 R. 2004. The second bill of rights: FDR’s unfinished revolution and why we need it more than ever. New York NY: Basic Books, 294 pages.

　　Tarr, G. Alan 2012. Without fear or favor: Judicial independence and judicial accountability in the states. Standford CA: Stanford University Press, 269 pages.

　　Teles, Steven M. 2008. The rise of the conservative legal movement : The battle for control of the law. Princeton N.J. : Princeton University Press. 339 pages.

　　Tushnet, Mark V. 2003. The new constitutional order. Princeton NJ: Princeton University Press, 265 pages.

　　Tushnet, Mark V. 2005. A Court divided: The Rhenquist Court and the future of constitutional law. New York NY: Norton, 384 pages.

　　Tushnet, Mark V. ed. 2005. The Constitution in wartime: Beyond alarmism and complacency. Durham NC: Duke University Press, 261 pages.

　　Tushnet, Mark V. 2009. The Constitution of the United States of America: A contextual analysis. Portland OR: Hart, 296 pages.

　　Tushnet, Mark V. 2010. Why the Constitution matters. New Haven CN: Yale University Press, 187 pages.

　　Tushnet, Mark V. 2013. In the balance: Law and politics on the Roberts Court. New York NY: Norton, 352 pages.

　　White, G. Edward 2000. The Constitution and the New Deal. Cambridge MA: Harvard University Press, 385 pages.

　　Whittington, Keith E. 2007. Political foundations of judicial supremacy: The presidency, the Supreme Court, and constitutional leadership in U.S. history. Princeton NJ: Princeton University Press, 303 pages.

　　Zeisberg, Mariah 2013. War powers: A political theory of Constitutional judgement. Princeton NJ: Princeton University Press, 288 pages.

　　Zurn, Christopher F. 2007. Deliberative democracy and the institutions of judicial review. New York: Cambridge University Press, 366 pages.

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　　THE SCHEME OF THIS BLOG

　　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