First Amendment Doctrine as Regime Politics

Abstract

In my work lately I have been considering whether we can get a better perspective on constitutional development and Supreme Court decision making by placing Court and its policies/doc trines/interpretations in larger context of politics.1 I have no technical definition of regime politics; I am just refer ring to various ways in which governing coalitions organize their power and advance their political agenda within a system of institutions. Within political science literature I am using work of Robert Dahl and Martin Shapiro as points of depar ture, and new institutionalism literature as a template.2 From point of view of governing coalitions, courts can be seen as similar to executive branch agencies. What these institu tions have in common is that they are staffed by politically appointed office holders who have policy-making responsibili ties over issues that are of interest to party leaders and their con stituents. This means that there is a routine and ongoing interest in shaping of these institutions. The main differences between these institutions are that courts (a) have much more political insulation (and thus decision-making independence) and (b) have much broader policy-making juris diction. Of course, courts and agencies also generate different internal institutional norms that may impose different constraints or institutional viewpoints upon officeholders. What can be done with this starting point? In some recent essays I have tried to examine certain periods in American con stitutional development that are best understood as by-prod uct of partisan that is, an effort on part of President and Senate leaders to protect a potentially vulnerable political agenda by shaping decision-making bias of fed eral judiciary (and especially Supreme Court). The two case studies I have looked at so far relate to post-Reconstruction efforts of Republican Party to promote an agenda of conser vative economic nationalism, and efforts of Democratic leaders in 1960s to reshape federal judiciary so that it reflected values of Great Society.3 The point would be to see whether certain developments in constitutional law can be traced, not just to individual policy preferences of judges, but to agendas of political parties. In other words, when we think about Lochner era, it may be more useful to think a little less about specific jurispru dence and life histories of individual justices and more about attitudes of post-Reconstruction Republican Party about how courts fit into their general agenda. This echoes Lucas Powe's point that Warren Court is better seen as politically constructed to be a functioning partner in promotion of Great Society rather than as a creature of judicial whimsy.4 All of this is linked to other work on what might be called the polit ical construction of judicial power.5 This effort to tie developments in constitutional law to politics outside Court works best when one can show that governing coalitions have an interest in a specific area of constitutional decision making. There is good evidence that post Reconstruction Republicans cared about treatment received by national corporations in judiciary (after all, they changed federal judiciary's jurisdiction making it possible to remove cases from state courts into federal courts) and about larger legal-constitutional context for development of a national industrial economy. There is good evidence that Johnson cared about having courts there to protect/promote a civil rights agenda. On other hand, courts have very broad policy-making jurisdiction, and so it is inevitable that judges will be addressing issues that were of very low salience to policy-conscious party leaders who selected them. When this happens, how accu rate is it to attribute constitutional decision making to parti san entrenchment, or to some other extra-judicial feature of regime politics? Constitutional law governing free speech may be a useful focal point for this question. There is little evidence that Supreme Court appointments in twentieth century have been driven specifically by a governing coalition's interest in advancing a certain understanding of free speech doctrine. Still, at various times in 20th century, nature of free speech doctrine has been an important matter for important political constituencies associated with governing coalitions. As Ken Kersch has pointed out, free speech law had important implica tions for labor movement during New Deal and for civil rights movement in years leading up to Great Society, and there is good reason to think that the shape of free speech law commonly reflects substantive regime commitments, expanding in certain areas and being trimmed in others.6 At a time when national party leaders had no real interest in extending special national protections to non-economic personal liberties, and when national elites of both parties favored corpo rate rights and were hostile to labor demands, it is no surprise that Supreme Court justices (chosen largely because they were reliable economic conservatives) would articulate first amend ment principles that were hostile to labor marches, pickets, or