American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power. By Stephen M. Engel. New York: Cambridge Univ. Press, 2011. 408 pp. $32.99 paper.

Abstract

American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power. By Stephen M. Engel. New York: Cambridge Univ. Press, 2011. 408 pp. $32.99 paper.In his engrossing study of the interactions of elected officials and the Supreme Court, Stephen Engel finds scholarly literature inadequate to explain a history in which hostilities recur while judicial authority appears to have become more secure over time. Scholars who simply trace anti-Court sentiment to the justices' unelected status cannot account for the leavening over time of politicians' responses. By contrast, studies that focus on the development of a norm of judicial supremacy cannot explain the continued efforts of politicians to draftbills that undercut judicial authority. Engel has a greater appreciation for scholars who maintain that judicial power serves to entrench partisan policy aims. Yet these studies fail to consider how politicians' preferences for judicial power have changed over the past 200 plus years and mistakenly treat elected branch hostility toward the judiciary as an aberration.Engel's central claim is that anti-judicial animus reflects politicians' changing ideas about the threat posed by formed, stable, and permanent (8). He grounds his perspective on the relationship between politicians and the Court in the shiftin American political culture from the idiom of civic republicanism, which emphasized a uniform notion of the common good and equated stable opposition with civic instability, to the idiom of liberal pluralism, which regards partisan competition as a sign of a healthy body politic. This developmental theory posits that political efforts to control judicial power will not so much decline as change over time.From the Founding era through the midnineteenth century, when Americans embraced the idiom of civic republicanism, politicians accepted the notion of a fixed Constitution, the meaning of which was discoverable through textual analysis. Politicians thus viewed political parties and stable opposition as threats to a regime unified around a proper understanding of that foundational document. Carrying this idea into the realm of judicial behavior, if judges offered a vision that challenged the commitments underlying the presidential administration and/or the ruling party in Congress, they would be seen to represent not simply an alternative vision of the good but a fundamental threat to civic stability (58). Under these circumstances, action took the form of blunt instruments that sought to undermine the legitimacy of the Court.The Civil War marked a turning point in constitutional development. …