Part #: Judicial Policymaking
The paper (again)
#creatives of the
Does the law constrain the Majority's decision?
(No!) & use
Observable Implications & lf constrained /dynamic is true, then we would expect
to see ...
Texts & data We also discuss several other topics like Which is an advantage of longitudinal over cross sectional research?
Gonerning law specific ta no material disagreement on the meaning of the law
(Unanimous or at least Zbi-partisan/non-ideological
Gorening law vague and/or material disagreement on the meaning of the laws
Split decisions & significa partisan lidedlogical coalite
Conclusion: Under what Conditions
Basis of legitimacy for judicial policymaking If you want to learn more check out What happens if the popliteal artery is blocked?
A The perceived wisdom of the issue by elites & people We also discuss several other topics like Which carbon atoms are used to form the glycosidic bonds?
If you want to learn more check out What attaches to lateral border of scapula?
If you want to learn more check out What is the meaning of x-inactivation in biology?
→ actions of policymaking justified as being the "right" action We also discuss several other topics like What are greece’s cultural-political foundations?
What is the political logic of judicial action?
Why the federal courts? - Did Brown v. Board work?
Wilson & Dilulio (Review): Why NOT Congress option
1. Identify proposal 2. Analyze perceived costs & benefits 3. Identify "sales" strategy
4. Assess whether group has resouces to implement strategy
D Perceived Benefits
- Politics 7 Care Diffuse?
Perceived Costs are Diffuse?
Concentrated cost Diffuse Benefits
Perceived Benefits Love Diffuse?
concentrated Cost Concentrated Benefits
Why use federal courts (to set agenda)?
* State judges are elected; federal judges are appointed
for life; those state judges will not side with an argument that might jeopardize their re-election "Grood" facts under separate but Equal Sympathetic national elites? (The Cold War Argument)
Why use federal Courts (to set agenda)? Contido
Sympathetic -- but not filibuster proof - liberal majority in Congress
A an opportunity for the court to enter an implicit
political partnership w/other powerful interests Did Braun v. Board work?
Af/Am 't going to
Did it matter? school w hites
Depends on def, of law in Congressional
a lf law: formal command fending a no
If policy: started a na warement
perceived Benefits Majoritarian
e client politics Pol. Percieved Presering Rule of law
Costs ^ Entrepreneurial
Interest Group Politics I Politics - - - - Brown
Confrontationalt i Media Politics
Promise of Law Summary
PROMISE Orderly Dispute I US v. Nixon
SOURCE OF LEGITIMAL
logic of the
Brown v. Board
Prudence (by elites & public)
Part II: Judicial Constraint
Putting Some Pieces Together as we Fragmented Political Authority
- Creates choice tus
creates imperatives to
When applied to civil rights, we can see tatt tiist oportuniti structive shift's
Bown as a political resource to shift perceptions about
Citigation as "constitutive" of policy perceptions
& (as a result) politics Brown creates
Civil Rights groups'civit a uright" to
disobedience highlights desegregation
Southern "resistance to the
Interest Group )
Politics Distribution of beal benefits
Politics school desegregation is now a constitutional rigut being imposed on
Politics Executive Branch intervenes on the grunds that everyone benefits from mile of law
Limits on Law & County Doctrinal Constraints: limits on conts derived from statutes, court decisions, or administrative regulations
Institutional Constraints: limit on courts that stem from:
a the way in which courts are internally organized b) the way in which courts interact with other "externa
political actors orals sig
Cultural Constraints: limits on courts that stem from elite or public opinion
stig & some constraints How do we know the law matters
fall into more than as a constraint? un
1 category & given the logic of the trad, we expect judges to say the law matters in all cases. So how do we
know that it does? & look at the type of signal (textual (conkent
analysis of the underlying law Examples of Doctrinal Constraints a
& same laws are vague..... un f Art. I, sect. 8 - "necessay & proper" clause
- You Andt. - "unreasonable search & seizure" & Some are more specific...
22nd Andt. - Presidental term limits
+26th Andt. - right to vote 18+ - the more specific the law, the stronger the
Behavioral Analysis afpe Doctrinal constraint
Colemean v. Tollesfson! issue does a dismissal on appeal count
as a strike under Prison litigation Reform Act?
Yes: 9-0 decision on Why? If law was a strong constraint,
ideologically diverse judges will
voke the same Audicial Can't" (textual content + behavioral analysis)
a) judges apply some laws even though they
disagree w/ the underlying policies...
- Fugitive slave Act, Tax law 6) look at what judges don't decide la variation
on the "framing" theme)
- constraint on judicial paver v. coercion Constraints on Audicial Paver limits on the court's ability to act at all
- ljusticiability" Constraints on Audicial coercion limits on the court's ability to implement decisions
Hurricane Katrina (political impact) A claimants had grievance; went to legislative branches
for assistance & Congress passed many lany to assist relief efforts
government said they tried but it didn't work, not lack of response, but ineffectiveness of response that brought
the case to the courts
Promise & Limits of the Courts The promise
when elected branches failed, go to the counts. a class action lawsuits against Army Corps of
Engineers based on design flans of the lenee
system The limits azobu raut losinolach
judicial can't ! + Onder Flood Control Act, they cannot be sued
the agency was still guilty of gross incompetence" but the judge's hands were thed
Brown vs. Katrina
Brown Sympathetic plaintiffs?
"Good" facts? "Closed" legislative Yes (blocked) Yes (tried & failed
jes trwani Yes
(No (judicial can't
[why? I Supreme Court om lower court
more specific law