By Stephen M. Engel
Politicians have lengthy wondered, or perhaps been brazenly 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 query anew, Stephen Engel issues to the slow popularity of dissenting perspectives of the structure, that's, the legitimacy and loyalty of sturdy competition. Politicians' altering belief of the chance posed via competition inspired how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced through the years, their procedure towards the judiciary - the place competition may perhaps develop into entrenched - replaced in addition. as soon as competition used to be not obvious as a basic hazard to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial energy will be construed much less because the seat of an illegitimate competition and extra as an software to accomplish political ends. Politicians have been likely to harness it to serve their goals than to brazenly undermine its legitimacy. briefly, 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 strength for political ends. Engel's ebook brings our figuring out of those manipulations into line with different advancements, equivalent to the institution of political events, the popularity of dependable competition, the improvement of other modes of constitutional interpretation, and the emergence of rights-based pluralism.
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59 And this point can be generalized. The current definition assumes that all these tactics entertain the same goal. Attending more closely to tactical objectives opens the possibility that they do not all seek the same ends. 61 This doctrine has enjoyed recurring prominence among certain presidents, and as Keith Whittington has argued, presidential assertions of authority to interpret the Constitution correspond to Stephen Skowronek’s characterization of particular presidents who come to office unencumbered by the commitments of a previous regime.
36 A theory is necessary that can explain when interests in strong judicial power John Ferejohn, “Independent Judges, Dependent Judiciary:Â€Explaining Judicial Independence,” Southern California Law Review 72 (1999), 376. , 370–1. , 372–82. ” Ginsburg, Judicial Review in New Democracies (New York:Â€Cambridge University Press, 2003), 261. 35 John Ferejohn, “Judicializing Politics, Politicizing Law,” Law and Contemporary Problems 65 (September 2002), 59. 36 More generally, these interest-based models do not explain the persistence of anti-Court rhetoric or assess its strategic and possible electoral value.
22 Beyond the Countermajoritarian Difficulty 25 Keith Whittington, Mark Graber, Howard Gillman, George Lovell, and Ran Hirschl explore how the judiciary holds strategic political value. In line with Dahl’s thesis, Whittington contends that judges may be aligned ideologically with the elected branches. 25 For Graber, the legislature can avoid inflaming internal party cleavages on divisive issues by passing Â�controversial issues to the Court for resolution. 31 In all these ways, strong and secure judicial power may serve politicians’ interests.