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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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THE SUPREME COURT AS A STRATEGIC NATIONAL POLICY MAKER
Published in 2001. Emory Law Journal 50 (Spring): 583-611

Lee Epstein
Jack Knight
Andrew D. Martin

Introduction

If the mark of a seminal study is the quantity and quality of the progeny it spawns, then Robert A. Dahl's "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," more than hits the target; it scores a bull's eye. Not a single year has elapsed over the past two decades that an article published in a social science journal or a law review has failed to cite the piece. Even more important is the diversity of scholarship—and high quality scholarship at that—building on Professor Dahl's study, from research assessing the relationship between public opinion and the U.S. Supreme Court to the role the justices play in facilitating partisan realignments to the Court'ss capacity to generate social change.

No one essay could consider the debt scholars writing in these and other areas owe to "Decision Making in a Democracy." And we do not try. Instead we focus on Dahl's resolution of the "countermajoritarian difficulty," a term Alexander Bickel coined to reflect the "problem" of allowing unelected judges to strike down legislation passed by elected representatives. On Dahl's account, we need not worry too much about this "difficulty" because the "policy views dominant on the Court are never for long out of line with the policy views dominant among lawmaking majorities of the United States." This coincidence of preferences comes about, according to Dahl, because the ruling regime (i.e., the President and the Senate) has the opportunity to appoint new justices to the Court about every two years. Those new justices, in turn, vote in accord with their sincere political preferences—or so Dahl assumes—which happen to be the same as those whom appointed them.

We argue that Dahl was right to discount the seriousness of the "difficulty" but not primarily for the reason he suggested. Rather than focusing on a correspondence of preferences among the different branches of government, we base our argument on the effects of the separation of powers system on the strategic choices of U.S. Supreme Court justices. We argue that, given the institutional constraints imposed on the Court, the justices cannot effectuate their own policy and institutional goals without taking account of the goals and likely actions of the members of the other branches. When they do so, justices find that the best way to have a long-term effect on the nature and content of the law is to adapt their decisions to the preferences of the other branches of government. In this sense, the resolution of the "countermajoritarian difficulty" rests in an important effect of the separation-of-powers system: a strategic incentive to anticipate and then react to the preferences of elected officials.

We develop this argument in three steps. We begin with a discussion of Dahl's "ruling regime" thesis and explore a key assumption under which it operates—that judicial decisions are a direct function of the sincerely-held attitudes of the justices. We next lay out our argument, which is attentive to the strategic context in which justices labor. In Part III, we assess several observable implications from our account and from Dahl's against data on constitutional civil right cases. Finally, we take stock of our results and discuss their implications for the countermajoritarian difficulty.

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