Suchergebnisse

It is widely assumed that the Supreme Court of the United States has established supremacy over contested constitutional questions, with the power to make final determinations of constitutional meaning. Since the 1960s, most scholars have assumed that legislatures and courts are engaged in a power struggle in which countermajoritarian courts can assert their will over majoritarian legislatures. More recently, a new generation of scholarship has demonstrated that judicial power often expands as a result of the willful empowerment of the judiciary by actors in other branches. Most scholars working with the latter framework, however, do not dispute that the United States has a regime of judicial supremacy—they simply see the political empowerment of courts as an explanation for why judicial supremacy has emerged despite the initially weak position of the judiciary. I argue that the insights of the political empowerment literature should be pressed further. It makes little sense to use the general label "judicial supremacy" for a system in which judicial power remains dependent on choices made by other political actors. Examining several cases that are generally seen as canonical examples of assertions of judicial supremacy, I find that courts were unable to settle constitutional debates, and in addition often either were unable to achieve their policy aims or did not actually require other political actors to do anything. The logic of new empirical findings about the sources of judicial power should compel scholars to question whether aggressive assertions of supremacy in judicial opinions are in fact accurate descriptions of how judicial power functions in the United States.

JEAN-LOUIS QUERMONNE: LE GOUVERNEMENT DE LA FRANCE SOUS LA VE REPUBLIQUE, PARIS, DALLOZ, 2ND ED., 1983, 699 PP., 182F. PRIOR TO 1958, THE FOUNDING MYTH OF THE 'REPUBLIC' POSITIVELY UNITING STATE AND NATION, DESCRIBED NEGATIVELY BY THIERS IN 1873 AS 'LE REGIME QUI DIVISE LE MOINS' - WAS IDENTIFIED WITH THE NOTION OF PARLIAMENTARY SOVEREIGNTY. UNDER THE THIRD AND FOURTH REPUBLICS, THE GOVERNMENT WAS REGARDED LITERALLY AS AN EXECUTIVE OF THE WILL OF THE PEOPLE'S REPRESENTATIVES. FURTHERMORE, THE JUDICIARY WAS NOT REGARDED AS SEPARATE ALBEIT DISTINCT FROM THE OTHER STATE AUTHORITIES - ADMINISTRATIVE AND MILITARY - WHICH WERE UNDER THE CONTROL OF THE POLITICAL EXECUTIVE, ITSELF ACCOUNTABLE TO PARLIAMENT. EVEN THOUGH ARTICLE 16 OF THE 1789 DECLARATION OF THE RIGHTS OF MAN AND THE CITIZEN HAD ROUNDLY ASSERTED THAT 'ANY SOCIETY IN WHICH RIGHTS ARE NOT SECURELY GUARANTEED AND THE SEPARATION OF POWERS IS NOT STIPULATED, HAS NO CONSTITUTION', THIS NORM HAD NO LEGAL FORCE. IN FACT FRENCH REGIMES SINCE 1789 HAVE BEEN CHARACTERIZED BY THE CONCENTRATION RATHER THAN THE SEPARATION OF POWER, EITHER IN A REGAL OR IMPERIAL STATE SOVEREIGNTY, TO WHICH THE LEGISLATURE WAS SUBORDINATED ALONG WITH ALL OTHER POLITICAL ACTORS, OR IN A PARLIAMENT THAT POSED AS THE EMBODIMENT OF POPULAR SOVEREIGNTY. WHAT QUERMONNE CALLS 'A SORT OF "HISTORIC COMPROMISE" IN 1958 IN FACT DID NOT LEAD TO A SYNTHESIS BETWEEN REGAL STATE POWER AND PARLIAMENTARY REPRESENTATIVE POWER BUT TO THE DOMINATION OF THE FORMER OVEPY: 1985

This book shows that constitutional courts exercise direct and indirect power on political branches through decision-making. The first face of judicial power is characterized by courts directing political actors to implement judicial decisions in specific ways. The second face leads political actors to anticipate judicial review and draft policies accordingly. The judicial–political interaction originating from both faces is herein formally modeled. A cross-European comparison of pre-conditions of judicial power shows that the German Federal Constitutional Court is a well-suited representative case for a quantitative assessment of judicial power. Multinomial logistic regressions show that the court uses directives when evasion of decisions is costly while accounting for the government's ability to implement decisions. Causal analyses of the second face of judicial power show that bills exposed to legal signals are drafted accounting for the court. These findings re-shape our understanding of judicialization and shed light on a silent form of judicialization. Benjamin G. Engst is a Postdoctoral Researcher in Political Science at the University of Mannheim, Germany.

Why do unelected federal judges have so much power to make policy in the United States? Why were federal judges able to thwart apparent legislative victories won by labor organizations in the Lochner era? Most scholars who have addressed such questions assume that the answer lies in the judiciary's constitutionally guaranteed independence, and thus worry that insulated judges threaten democracy when they stray from baseline positions chosen by legislators. This book argues for a fundamental shift in the way scholars think about judicial policy-making. Scholars need to notice that legislators also empower judges to make policy as a means of escaping accountability. This study of legislative deference to the courts offers a dramatic reinterpretation of the history of twentieth-century labor law and shows how attention to legislative deferrals can help scholars to address vexing questions about the consequences of judicial power in a democracy