Does the Court Follow the Election Returns?

Abstract

Michael J. Klarman's monumental book-undertaking a sweeping exploration of causes and consequences of all of Supreme Court's race decisions from Plessy v. Ferguson to Brown v. Board of Education-is likely to become definitive study of Supreme Court and race in first half of twentieth century. As a narrative history of Court's actions on broad array of constitutional issues relevant to racial equality-from criminal procedure to voting rights to desegregation-the book is an invaluable resource. As an explanation of these Court actions and of their impact on advance of civil rights, however, Klarman's argument needs to be taken with several important caveats. Klarman seeks to explain Court's decisions primarily by reference to political rather than legal factors and he also argues that these decisions had a much more limited impact than is often assumed. To a degree that is unusual for either historians or legal scholars, moreover, he cites a wide variety of political science research in support of these claims. While his arguments may be novel for legal historians, in fact, they are very familiar to political scientists as legacy of Robert Dahl. This Dahlian account of Court, which has been experiencing a bit of a revival in recent years, is often summed up in claim that the Court follows election returns, a pithy phrase meant to capture two related arguments. First, judicial decisions are not self-executing. Since Court's capacity to enforce compliance is quite limited, it will never succeed in ordering broad-scale social change unless it has some support from other institutions. Second, Court is unlikely even to try to order such change, because, as Dahl taught us, justices are themselves members of national governing coalition. As such, they are unlikely to challenge its core commitments.1 To a point, these arguments represent a useful corrective to our naive faith in law's capacity either to control judicial discretion or to compel broad social change. Of course, it is difficult to find any scholars possessed of such a