The Supreme Court and Critical Elections

American Political Science Review

Volumn 69, Issue 3, 1975, Pages 795-811

  Funston, Richard ^a  

^a SAN DIEGO STATE UNIVERSITY   (United States)

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EID: 84930070063     PISSN: 00030554     EISSN: 15375943     Source Type: Journal    
DOI: 10.2307/1958390     Document Type: Article

References (104)

1. See, for example, Leonard Levy, ed., Judicial Review and the Supreme Court: Selected Essays (New York: Harper & Row, 1967); Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), pp. 34–110.
2. See, for example, Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review, 73 (November, 1959), 1-35; Learned Hand, The Bill of Rights (New York: Atheneum, 1965). See generally Bickel, pp. 34–65.
3. See, for example, Hugo Black, A Constitutional Faith (New York: Knopf, 1968); Laurent B. Frantz, “Is the First Amendment Law? A Reply to Professor Mendelson,” California Law Review, 51 (October, 1963), 729–754. See generally Bickel, pp. 73–98.
4. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, 6 (Fall, 1957), 279–295. After the final draft of this manuscript was virtually completed, an additional commentary bearing on its thesis became available. David Adamany, “Legitimacy, Realigning Elections, and the Supreme Court,” Wisconsin Law Review (September, 1973), pp. 790–846. Professor Adamany's article is a thoroughgoing, conscientious—if ultimately wrong-headed—critique of Dahl's work on the Court, as well as that of professors Charles Black and Alexander Bickel.
5. Dahl, p. 293.
6. Dahl, pp. 293–295.
7. Although for purposes of comparability with Dahl I have chosen to equate a “law-making majority” with a “popular majority,” this point is not critical to the argument. The coalition dominant within the American political process at any given period may be dominant because of its numbers, or because of its wealth, or because of its monopolization of the media or the instruments of force, or for some other reason. The argument here is that the Court will reflect the values of this dominant coalition. The reasons why that coalition is politcally dominant are irrelevant to the hypothesis. Thus, the argument is equally applicable whether one employs a “pluralist” or an “elitist” concept of American politics. See Robert Dahl, Pluralist Democracy in the United States: Conflict and Consent (Chicago: Rand McNally, 1967). But see William Connolly, ed., The Bias of Pluralism (New York: Atherton, 1969); Peter Bachrach, The Theory of Democratic Elitism: A Critique (Boston: Little, Brown, and Co., 1967).
8. Dahl, “Decision-Making,” pp. 283–284.
9. Dahl, “Decision-Making,” p. 284. See also note 7. While it may never be possible rigorously and definitively to resolve the question of whether a legislature really represents a “majority,” especially given the evanescence of majorities and the difficulties involved in defining “representation,” such evidence as we have suggests that Congress is not markedly out of line with its constituents. See, for example, Warren Miller and Donald Stokes, “Constituency Influence in Congress,” American Political Science Review, 57 (March, 1963), 45–56.
10. See V. O. Key, The Responsible Electorate (Cambridge, Mass.: Belknap Press, 1966). See also Richard Boyd, “Popular Control of Public Policy: A Normal Vote Analysis of the 1968 Election,” American Political Science Review, 66 (June, 1972), 429–449.
11. Gerald Pomper, “From Confusion to Clarity: Issues and American Voters, 1956-1968,” American Political Science Review, 66 (June, 1972), 415–428. But see Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics (New York: Norton, 1970).
12. David RePass, “Issue Salience and Party Choice,” American Political Science Review, 65 (June, 1971), 389–400. But see Nelson Polsby and Aaron Wildavsky, Presidential Elections: Strategies of American Electoral Politics, 2nd edition (New York: Scribner, 1971), pp. 293–302.
13. But see William Andrews, “American Voting Participation,” Western Political Quarterly, 19 (December, 1966), 639–652.
14. Walter Dean Burnham, “The Changing Shape of the American Political Universe,” American Political Science Review, 59 (March, 1965), 7–28.
15. The existence of the institution of federalism in America introduces certain problems for this analysis as indeed it does for a great many other analyses of American politics. I have chosen to limit the analysis to cases involving federal statutes on the grounds that it is logically impossible to conclude anything about the relationship between the Supreme Court and “majority” rule on the basis of cases involving state statutes.
16. But see note 67. The limited nature of the data will permit of only very modest conclusions.
17. Angus Campbell, Philip E. Converse, Warren E. Miller, and Donald E. Stokes, Elections and the Political Order (New York: Wiley, 1966).
18. Campbell et al., pp. 63–77. The seminal work on cyclical electoral patterns was, of course, V. O. Key, “A Theory of Critical Elections,” Journal of Politics, 17 (February, 1955), 3–18. For a most sophisticated attempt to synthesize the work on political party systems, explaining election cycles in general theoretical terms, see Thomas P. Jahnige, “Critical Elections and Social Change: Towards a Dynamic Explanation of National Party Competition in the United States,” Polity, 3 (June, 1971), 465–500. It bears emphasis that, given the still very crude state of the art, the Survey Research Center's classification scheme is applicable only to presidential elections. If and when it can be refined and extended to other elections, e.g., congressional; it will much further advance the study of the relationship between social change and institutional response.
19. See also Gerald Pomper, “Classification of Presidential Elections,” Journal of Politics, 29 (August, 1967), 535–566, distinguishing between realigning and converting elections depending upon whether the dominant party of the previous era continues its dominant status.
20. See James L. Sundquist, “Whither the American Party System?”, Political Science Quarterly, 88 (December, 1973), 559-581.
21. See Ruth Silva, Rum, Religion, and Votes: 1928 Re-Examined (University Park: Pennsylvania State University Press, 1962); Samuel Eldersveld, “The Influence of Metropolitan Party Pluralities in Presidential Elections since 1920: A Study of Twelve Key Cities,” American Political Science Review, 43 (December, 1949), 1189–1206.
22. Depending upon whose count one uses, there have been three, four, or six. Compare Campbell et al., Elections and the Political Order with William Nisbet Chambers and Walter Dean Burnham, eds., The American Party Systems: States of Political Development (New York: Oxford, 1967); and James L. Sundquist, Dynamics of the Party System: Alignment and Realignment of Political Parties in the United States (Washington, D.C.: Brookings, 1973); and Charles Sellers, “The Equilibrium Cycle in Two-Party Politics,” Public Opinion Quarterly, 29 (Spring, 1965), 16–37.
23. Chambers and Burnham, American Party Systems; see also Sundquist, Dynamics of the Party System. But see Douglas Price, “‘Critical Elections’ and Party History: A Critical View,” Polity, 4 (December, 1971), 236–242.
24. The following brief summary of the findings reported in American Party Systems relies heavily upon Professor Burnham's concluding essay in that volume. For a more extensive treatment, the reader is urged to consult Burnham, “Party Systems and the Political Process,” in American Party Systems, pp. 277–307. See also Arthur Schlesinger, Jr., ed., The Coming to Power: Critical Presidential Elections in American History (New York: Chelsea House, 1971). The general patterns identified by Chambers and Burnham are essentially the same as those advanced by Jahnige, “Critical Elections and Social Change,” p. 468.
25. See Paul Goodman, “The First American Party System,” in American Party Systems, pp. 56–89. See also Joseph Charles, The Origins of the American Party System (New York: Harper & Row, 1961); William Nisbet Chambers, Political Parties in a New Nation; The American Experience, 1776–1809 (New York: Oxford, 1963).
26. See Leonard Levy, Jefferson and Civil Liberties: The Darker Side (Cambridge, Mass.: Harvard University Press, 1963); Walter Berns, “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal,” The Supreme Court Review (1970), pp. 109–160.
27. See Richard McCormick, “Political Development and the Second Party System,” in Chambers & Burnham, American Party Systems, pp. 90–116.
28. Burnham, “Party Systems and the Political Process,” pp. 292–295. See also Dwight L. Dumond, Antislavery Origins of the Civil War in the United States (Ann Arbor, Mich.: University of Michigan Press, 1959); Roy F. Nichols, The Stakes of Power, 1845–1877 (New York: Hill and Wang, 1961).
29. Roy F. Nichols, The Disruption of American Democracy (New York: Free Press, 1967).
30. Burnham, “Party Systems and the Political Process,” pp. 295-296; Charles A. Beard and Mary Beard, The Rise of American Civilization (New York: Macmillan, 1927), pp. 52–122.
31. See Kenneth Stampp, The Era of Reconstruction, 1865–1877 (New York: Alfred A. Knopf, 1965); James G. Randall and David Donald, The Civil War and Reconstruction (Boston: Heath, 1961).
32. See Robert McCloskey, American Conservatism in the Age of Enterprise, 1865–1910 (Cambridge, Mass.: Harvard University Press, 1951); Richard Hofstadter, The American Political Tradition and the Men Who Made It (New York: Random House, 1948), pp. 164-205; Sidney Fine, Laissez Faire and the General-Welfare State: A Study of Conflict in American Thought, 1865–1901 (Ann Arbor, Mich.: University of Michigan Press, 1956).
33. See Harold U. Faulkner, Politics, Reform, and Expansion (New York: Harper & Row, 1959); John Hicks, The Populist Revolt (Minneapolis: University of Minnesota Press, 1931).
34. See John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 (New York: Atheneum, 1970).
35. Burnham suggests that this result was accomplished by the withdrawal from political participation of the urban working class, creating a political void which was filled elsewhere by the rise of socialist parties. Burnham, “Party Systems and the Political Process,” p. 301. But see Louis Hartz, The Liberal Tradition in America (New York: Harcourt, Brace & World, 1955).
36. See Silva, Rum, Religion, and Votes.
37. See William Leuchtenberg, Franklin D. Roosevelt and the New Deal (New York: Harper & Row, 1963).
38. See Theodore Lowi, The End of Liberalism (New York: Norton, 1969).
39. Richard Scammon and Benjamin Wattenberg, The Real Majority (New York: Coward, McCann & Geoghegan, 1970); Kevin Phillips, The Emerging Republican Majority (New Rochelle, New York: Arlington House, 1969).
40. See Samuel Lubell, The Hidden Crisis in American Politics (New York: W. W. Norton & Co., 1970); Herbert Weisberg and Jerrold Rusk, “Dimensions of Candidate Evaluation,” American Political Science Review, 64 (December, 1970), 1167–1185. But see Sundquist, “Whither the American Party System?,” and Dynamics of the Party System. Rather than a realignment, Sundquist anticipates a reversal of the current trend toward party disintegration and a new strengthening of party attachments along the lines of cleavage established in the New Deal era. As such, Sundquist seems to have in mind what Pomper would call a “converting” era. See Pomper, “Classification of Presidential Elections.”
41. See, for example, Leonard Levy, ed., American Constitutional Law: Historical Essays (New York: Harper & Row, 1966), pp. 1-9; Robert Scigliano, The Supreme Court and the Presidency (New York: Free Press, 1971), p. viii. See also Glendon Schubert, Judicial Policy-Making (Glenview, Illinois: Scott, Foresman, 1965), pp. 131–157.
42. Adamany, “Legitimacy, Realigning Elections, and the Supreme Court,” is really more suggestive than it is rigorously empirical. Sheldon Goldman and Thomas P. Jahnige have briefly examined the coincidence between periods of electoral realignment and the Court-curbing periods identified by Stuart S. Nagel. They have found a distinct correlation. But such a focus is, by definition, concerned not with the Court's behavior but with the actions of others directed at the Court. Sheldon Goldman and Thomas P. Jahnige, The Federal Courts as a Political System (New York: Harper & Row, 1971), pp. 261-268; see also Stuart S. Nagel, The Legal Process from a Behavioral Perspective (Homewood, Ill.: Dorsey Press, 1969), pp. 260–279. Nagel and Wallace Mendelson have discussed the effect for Supreme Court policy making of party differences between Congress and the Court, but their work has not been guided by critical election theory. Nagel, The Legal Process, pp. 245-259; Mendelson, “Judicial Review and Party Politics,” Vanderbilt Law Review, 12 (March, 1959), 447–457.
43. Burnham, Critical Elections, p. 10, fn. 15.
44. See, for example, Fletcher v. Peck, 6 Cranch 87 (1810); McCulloch v. Maryland, 4 Wheaton 316 (1819).
45. See, for example, Marbury v. Madison, 1 Cranch 137 (1803); Cohens v. Virginia, 6 Wheaton 264 (1821).
46. See, for example, Dartmouth College v. Woodward, 4 Wheaton 518 (1819); Sturges v. Crowninshield, 4 Wheaton 122 (1819).
47. See, for example, Gibbons v. Ogden, 9 Wheaton 1 (1824); Brown v. Maryland, 12 Wheaton 419 (1827); McCulloch v. Maryland, 4 Wheaton 316 (1819).
48. See, for example, Fletcher v. Peck, 6 Cranch 87 (810); Martin v. Hunter's Lessee, 1 Wheaton 304 (1816); Cohens v. Virginia, 6 Wheaton 264 (1821).
49. See, for example, Fletcher v. Peck, 6 Cranch 87 (1810); Dartmouth College v. Woodward, 4 Wheaton 518 (1819); Sturges v. Crowninshield, 4 Wheaton 122 (1819).
50. Differences of personality and temperament as much as differences of politics may account for the enmity which existed between the Court headed by Marshall and the executive branch headed by Jefferson. With the removal of Jefferson from the White House and thus the removal of the personality factor, the Marshall Court and the succeeding Republican presidents got along quite well. See Richard Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford, 1971); Alfred Kelly and Winfred Harbison, The American Constitution: Its Origin and Development (New York: Norton, 1970), pp. 202-247; Julian Boyd, “The Chasm That Separated Thomas Jefferson and John Marshall,” in Essays on the American Constitution, ed. Gottfried Dietze (Englewood Cliffs, New Jersey: Prentice-Hall, 1964), pp. 3–20.
51. See, for example, Mayor of New York v. Miln, 11 Peters 102 (1837); Charles River Bridge Co. v. Warren Bridge Co., 11 Peters 420 (1837); Bank of Augusta v Earle, 13 Peters 519 (1839).
52. See, for example, Dred Scott v. Sandford 19 Howard 393 (1857).
53. For example, Civil Rights Cases, 109 U. S. 3 (1883).
54. Knox v. Lee, 12 Wallace 457 (1871); Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (1890).
55. For example, United States v. E. C. Knight Co., 156 U. S. 1 (1895); Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429 (1895); Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601 (1895). See Alan Westin, “The Supreme Court, The Populist Movement and The Campaign of 1896,” Journal of Politics, 15 (February, 1953), 3–41.
56. For example, DeLima v. Bidwell, 182 U. S. 1 (1901); Downes v. Bidwell, 182 U. S. 244 (1901); Dorr v. United States, 195 U. S. 138 (1904); Rasmussen v. United States, 197 U. S. 516 (1905).
57. For example, Smyth v. Ames, 169 U. S. 466 (1898); Lochner v. New York, 198 U. S. 45 (1905); Coppage v. Kansas, 236 U. S. 1 (1915).
58. For example, Schechter Bros. Poultry Corp. v. United States, 295 U. S. 495 (1935); United States v. Butler, 297 U. S. 1 (1936); Carter v. Carter Coal Co., 298 U. S. 238 (1936).
59. See Robert Stern, “The Problems of Yesteryear—Commerce and Due Process,” Vanderbilt Law Review, 4 (April, 1951), 446-468; Robert McCloskey, “Economic Due Process and the Supreme Court: An Exhumation and Reburial,” The Supreme Court Review (1962) pp. 34–62.
60. See Philip B. Kurland, Politics, the Constitution, and the Warren Court (Chicago: University of Chicago Press, 1970); Arthur S. Miller, The Supreme Court and American Capitalism (New York: Free Press, 1968); Lowi, The End of Liberalism.
61. While I have examined the relation between judicial decision making and the party systems during maintaining periods of stable partisan competition, Adamany has focused upon the relationship between the Court and the elected branches during realignment phases. Adamany, “Legitimacy, Realigning Elections, and the Supreme Court,” pp. 820–843. His historical survey tends to substantiate the thesis advanced here, although the conclusions which he draws from his analysis differ from my own.
62. To be perfectly precise, the time span from Marshall's appointment on January 31, 1801, to Warren's retirement on June 23, 1969, is 168 years, 4 months, and 23 days.
63. Indeed, Sellers, “The Equilibrium Cycle,” classifies the two elections of Washington as “deviating” elections, a classification which poses certain logical difficulties.
64. See Robert Steamer, The Supreme Court in Crisis: A History of Conflict (Boston: University of Massachusetts Press, 1971), pp. 3–23.
65. Appendices fully elaborating the data base are available from the author upon request.
66. See Robert Steamer 271 U.S. 52 (1926).
67. Dahl, “Decision-Making,” pp. 286–291. I have not, however, adopted Dahl's distinction between cases dealing with major policy issues and those dealing with minor, because I am persuaded by criticisms of his attempts in other areas of analysis to distinguish between important and unimportant policy matters as definitional sleight of hand subject to serious theoretical reservations. See Peter Bachrach and Morton Baratz, “Decisions and Nondecisions: An Analytical Framework,” American Political Science Review, 57 (September, 1963), 641-652; and “Two Faces of Power,” American Political Science Review, 56 (December, 1962), 947–952. But see Robert Dahl, Who Governs? (New Haven, Conn.: Yale University Press, 1961). For purposes of this study, rejection of such a distinction does sacrifice historical nuance. But, as my conclusions indicate, I do not mean to discourage systemic, historical analysis oft he Court —indeed, quite the opposite—and I hope that scholars who undertake such studies will have better luck than has Dahl in operationalizing definitions of “major” and “minor” policies.
68. See note 65.
69. See note 3.1/1.2 = 2.58
70. For a more extensive discussion of the time lag between the coming of new party eras and the restructuring of Supreme Court policy making, see Dahl, Pluralist Democracy, pp. 154–170.
71. The fifth appointment to the Court made after the beginning of the realignment period, 1888, was made in 1894; thus there is no “lag period.” Many students of the Court have observed that in its decision making during this period the Court actually seemed to be anticipating the election returns. This pattern of recruitment suggests why.
72. See note 65.
73. See note 65.
74. Richard Cortner and Clifford Lytle, eds., Modern Constitutional Law (New York: Free Press, 1971), p. 12.
75. See note 22.
76. See, for example, Kurland, Politics, the Constitution, and the Warren Court, p. 26. This analysis has, of course, been limited to cases involving the constitutionality of federal statutes for purposes of comparability with Dahl.
77. Robert Jackson, The Struggle for Judicial Supremacy (New York: Knopf, 1941), pp. 9-10.
78. Indeed, if one uses Sellers's categorization, five of the six Presidents mentioned by Jackson have come to office on the crest of realigning elections. See Sellers, “The Equilibrium Cycle.” In this regard, President Nixon's attacks upon the Court's policy making and his attempts to change it while in office are yet other intriguing data possibly indicative of contemporary electoral realignment See also Duane Lockard, The Perverted Priorities of American Politics (New York: Macmillan, 1971), pp. 234–235.
79. See note 15.
80. Peters 515 (1832).
81. See Stephen Wasby, The Impact of the United States Supreme Court: Some Perspectives (Homewood, Ill.: Dorsey Press, 1970.)
82. For example, Hepburn v. Griswold, 8 Wallace 603 (1870); Hammer v. Dagenhart, 247 U.S. 251 (1918); Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). Hammer and Bailey, however, might be seen as coming within a critical period, depending upon how one views the Wilson era. See Sellers, “The Equilibrium Cycle.”
83. Dahl, “Decision-Making” Charles Black, The People and the Court: Judicial Review in a Democracy (New York: Macmillan, 1960). An excellent critique of Black's work is to be found in Kurland, Politics, the Constitution, and the Warren Court, pp. 34–39. In spite of his criticisms, however, Professor Kurland also endorses by implication the legitimation thesis. See Kurland, p. 56. But see Adamany, “Legitimacy, Realigning Elections, and the Supreme Court,”
84. It must be emphasized that many questions in American politics and certainly many which reach the Supreme Court do not resolve themselves into clear-cut issues of a majority versus a minority. Rather, in a system of “minorities rule,” many political issues involve conflict between two, competing minorities. In such situations, however the Court strikes the balance, it will by definition advance the rights of a minority. See generally Robert Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956).
85. Wheaton 316 (1819).
86. Cranch 137 (1803).
87. For example, United States v. Seeger, 380 U.S. 1 (1965); Oestereich v. Selective Service, 393 U.S. 233 (1968); Gutknecht v. United States, 396 U.S. 295 (1970); Breen v. Selective Service, 396 U.S. 460 (1970); Welsh v. United States, 398 U.S. 333 (1970).
88. Townsend v. Swank, 404 U.S. 282 (1972); Jefferson v. Hackney, 406 U.S. 535 (1972); Carleson v. Remillard, 406 U. S. 598 (1972).
89. For example, Daniel v. Paul, 395 U.S. 298 (1969); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); Moose Lodge v. Irvis, 407 U.S. 163 (1972).
90. But see Martin Shapiro, Law and Politics in the Supreme Court (New York: Free Press, 1964), pp. 75–173, 253-327; and The Supreme Court and Administrative Agencies (New York: Free Press, 1967); Richard Funston, ed., Judicial Crises: The Supreme Court in a Changing America (Cambridge, Mass.: Schenkman, 1974), p. v.
91. Felix Frankfurter, “John Marshall and the Judicial Function,” Harvard Law Review, 69 (December, 1955), 217–238.
92. Kurland, Politics, the Constitution, and the Warren Court, pp. 17–18, 22. See also Schubert, Judicial Policy-Making, pp. 145–157.
93. See Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934).
94. See also Bickel, The Least Dangerous Branch, pp. 23-28; Wechsler, “Neutral Principles.”
95. Bickel, The Least Dangerous Branch, pp. 25–26.
96. Louis Heren, The New American Commonwealth (New York: Harper & Row, 1968), p. 18.
97. Oliver Wendell Holmes, Collected Legal Papers (New York: Harcourt, Brace and Howe, 1920), p. 139.
98. See Black, The People and the Court, p. 53.
99. Oregon v. Mitchell, 400 U.S. 112 (1970).
100. Holmes, Legal Papers, p. 270.
101. See Thurman Arnold, The Symbols of Government (New Haven, Conn.: Yale University Press, 1935); Edward S. Corwin, “The Constitution As Instrument And As Symbol,” American Political Science Review, 30 (December, 1936), 1072-1085; Max Lemer, “Constitution and Court as Symbols,” Yale Law Journal, 46 (June, 1937), 1291–1319. One of the more interesting aspects of these studies of the symbolic functions of the Court and the Constitution is their dates of publication, no doubt owing largely to the Court's travails with the New Deal. Since the 1930s the study of the symbolic uses of constitutional adjudication appears to have fallen into desuetude. For example, Murray Edelman's admirable analysis of Politics as Symbolic Action (Chicago: Markham, 1971) contains not even a passing reference to the judicial process.
102. James Bryce, The American Commonwealth, 2nd ed., rev. (New York: Macmillan, 1891), I, 348.
103. Robert Jackson, The Supreme Court in the American System of Government (New York: Harper & Row, 1955), p. 81.
104. Holmes, Legal Papers, pp. 292–293.