Reviewed by Tom S. Clark, Department of Political Science, Emory University. TClark7 [at] emory.edu.
Since the days of Jefferson, antagonism between the elected branches of government and the federal judiciary has been a regular characteristic of American government. Nearly every undergraduate who takes a class in American government or constitutional law certainly learns the story of Marbury v. Madison, a case in which the Supreme Court came in direct conflict with the Jefferson Administration and was able to escape the battle arguably even stronger than it had been before. Stephen Engel’s American Politicians Confront the Court offers a new perspective on the nature of these conflicts, specifically focusing on how their tenor and content have evolved over the course of American history. Engel’s argument, which he develops through a series of detailed qualitative, historical narratives of periods of conflict between politicians and the Court, is that the very meaning of conflict has changed from one of true institutional threat during the early years of the Constitution to one of more tolerant institutional rivalry in the modern era. I suspect this book will provide much grist for the mills as scholars seek to incorporate Engel’s descriptive empirical work on political development into theoretical accounts of institutional evolution, political legitimacy, and the separation of powers.
Engel’s argument is essentially that the terms of constitutional political debate have evolved over the past 220-plus years and that the nature of political confrontations with the Court bears witness to those patterns. The first 70 years of the Constitution were characterized by civic republicanism, which was a mode of constitutional discourse in which each side of a debate believed itself to be the true defenders of the Constitution. Opposition views were not only wrong but were illegitimate and threatening to the stability of the system. However, over the course of the nineteenth century, that view of opposition changed. Engel (pp.55-56) argues there were two important developments that are critical to understanding how American politics changed.
[First] is the shift from understanding opposition outside the bounds of parliamentary debate as wholly illegitimate to acknowledging opposition as unavoidable and finally to accepting it as non-threatening; and second is the transition from being hostile to all political parties to accepting a party as an organizational form and finally to promoting multiple party competition.
[*178] The result of these transformations in American politics is the displacement of civic republicanism with liberal pluralism. Liberal pluralism is characterized by the tolerant acceptance of the legitimacy of competing views of constitutional meaning. Engel attributes much of the transformation from civic republicanism to liberal pluralism to President Lincoln’s leadership and efforts to hold together the Union during the build-up to the Civil War as well as a change in politics after the War. The reason is that the War apparently taught Americans that “argument about the meaning of the Constitution needed to occur through persuasion rather than violent coercion” (p.56).
The consequence of the transition to liberal pluralism, Engel contends, is that it led to qualitatively different types of attacks on the Court. The critical assumption underlying this argument (and one to which I do not necessarily take exception) is that the Court is just another political actor, and opposition from the Court is perceived in the same way as opposition from a legislative minority is perceived by the legislative majority. As a consequence, when opposition is perceived as illegitimate and threatening (i.e., during the period of civic republicanism), attacks on the Court will include (i) “Extra judicial assertions of authority to interpret the Constitution” and (ii) “Attacks that undermine judicial legitimacy or open consideration of succession.” By contrast, when opposition is perceived as legitimate (i.e., during the period of liberal pluralism), attacks on the Court will include (i) “Hostile rhetoric but measures come as difficult to pass constitutional amendments or statute that achieves little more than where the Court’s own jurisprudence has trended,” (ii) “Narrow statutes to curb or transfer jurisdiction on particular policy issues,” (iii) “Purposive passage of ambiguous statute or attempts to make legal meaning ambiguous thereby inviting judicial review,” and (iv) “Retreat from court-curbing legislation if acting upon it threatens other institutional bases of power” (pp.56-60). Engel employs six detailed case studies covering the Jeffersonian period through contemporary Republican-led criticism of the Court to document the claim that prior to Reconstruction, political attacks on the Court were intended to undermine the Court’s legitimacy, while after Reconstruction, political attacks on the Court were intended to “harness judicial power.”
Engel’s argument is provocative, and his knowledge of the content and nature of political attacks on the Court throughout American history is impressive. However, there are a few questions he does not fully resolve. First, what exactly is the foundation of judicial legitimacy? What function does it serve? Engel distinguishes attacks on the Court’s legitimacy from attacks on the Court that are “ambiguous,” “narrow,” or “difficult to pass.” A growing body of literature (uncited by Engel) argues that judicial legitimacy is predicated on public support for the institution (Stephenson 2004; Vanberg 2005; Staton 2010), which suggests that even purely rhetorical attacks on the Court may have consequences for the Court’s legitimacy. Engels’ argument does not specify the origins of, and function served by, judicial legitimacy, and so the reader is not sure whether he would reject these types of arguments and if so, why. This point is particularly important, I believe, [*179] because it goes to the heart of how we distinguish attacks that have consequences for the Court’s legitimacy from those that do not.
A related issue concerns an alternative account that is not considered. Throughout the book, the Court is seemingly treated as a passive institution whose treatment by politicians is simply a function of the politics of the time (though Engel does at times consider active choices the Court has made). However, surely the Court takes steps to build itself as an institution, and surely the dynamics of politics mean that the Court’s institutional power changes over time, regardless of the particular nature of political views of opposition. For example, Carrubba’s (2009) model of the endogenous emergence of judicial power suggests that the Supreme Court has been able to strategically build itself through its decisions, to the point where politicians today would suffer considerable political backlash from actively undermining the Court’s power. Thus, the story is not that politics changed and as a consequence the Court has become “safe” from attacks on its legitimacy. Instead, the story could be that the Court has strategically taken steps to build a strong reputation among the public (the real source of power in American politics) and thereby cornered the politicians into a position where they can no longer actively threaten the Court, for fear of political reprisal from the public. I am not sure how Engel would respond to this alternative explanation.
Despite those remaining questions, Engel’s work represents an important contribution and raises a number of puzzles with which future scholars will have to wrestle. For me, the most interesting puzzle concerns a paradox that Engel does not discuss. Civic republicans regarded opposition as illegitimate and threatening, because they believed they had the one, true understanding of the Constitution and that admitting any other competing views would undermine the Constitution and destroy the Republic. To protect the Constitution, then, they would attack vociferously and relentlessly their opposition, to the point of nearly destroying the Republic (indeed, presumably triggering a Civil War). A paradox lies in this behavior. Why would politicians who thought sustaining the Union and preserving the Constitution so paramount be more willing to undermine the Constitution’s institutions rather than engage a debate about constitutional meaning?
In the end, Engel’s work represents an impressive survey of political confrontations with the Court since the Founding and advances an intriguing and provocative argument about how those confrontations have evolved over time. While it is certainly not the last word on the subject, the research does uncover a number of previously unappreciated patterns and suggests a dynamic that future scholars of judicial independence will want to consider.
Carrubba, Clifford J. 2009. “A Model of the Endogenous Development of Judicial Institutions in Federal and International Systems.” Journal of Politics 71(1):55-69. [*180]
Staton, Jeffrey K. 2010. Judicial Power and Strategic Communication in Mexico. Cambridge University Press.
Stephenson, Matthew C. 2004. “Court of Public Opinion: Government Accountability and Judicial Independence.” Journal of Law, Economics & Organization 20(2):379-99.
Vanberg, Georg. 2005. The Politics of Constitutional Review in Germany. Cambridge University Press.
Marbury v. Madison 5 U.S. 137 (1803).
Copyright 2012 by the Author, Tom S. Clark.