Politicians have long questioned, or even been openly hostile to, the legitimacy of judicial authority, but that authority seems to have become more secure over time. What explains the recurrence of hostilities and yet the security of judicial power? Addressing this question anew, Stephen Engel points to the gradual acceptance of dissenting views of the Constitution, that is, the legitimacy and loyalty of stable opposition. Politicians' changing perception of the threat posed by opposition influenced how manipulations of judicial authority took shape. Engel's book brings our understanding of these manipulations into line with other developments, such as the establishment of political parties, the acceptance of loyal opposition, the development of different modes of constitutional interpretation and the emergence of rights-based pluralism.
Stephen M. Engel is an Assistant Professor of Politics at Bates College in Lewiston, Maine. He holds a PhD in political science from Yale University as well as an MA in social thought from New York University and a BA in interdisciplinary social science from Wesleyan University. In 2007-08, he held a research fellowship at the American Bar Foundation where he conducted research on anti-Court activism in the United States. He is the author of The Unfinished Revolution: Social Movement Theory and the Gay and Lesbian Movement (Cambridge University Press, 2001). He has also published in Studies in American Political Development and Law and Social Inquiry.
1. Introduction: had Americans 'stopped understanding about the three branches'?; Part I. Political Development and Elected-Branch Relations with the Judiciary: 2. Beyond the countermajoritarian difficulty; 3. A developmental theory of political manipulation of judicial power; Part II. Hostility to Judicial Authority and the Political Idiom of Civic Republicanism: 4. In the cause of unified governance: undermining the court in an anti-party age; 5. Party against partisanship: single-party constitutionalism and the quest for regime unity; 6. 'As party exigencies require': republicanism, loyal opposition, and the emerging legitimacy of multiple constitutional visions; Part III. Harnessing Judicial Power and the Political Idiom of Liberal Pluralism: 7. Clashing progressive solutions to the problem of judicial authority; 8. In a polity fully-developed for harnessing (I): living constitutionalism and the policization of judicial appointment; 9. In a polity fully-developed for harnessing (II): a conservative insurgency and a self-styled majoritarian court responds; 10. Conclusion: on the 'return' of opposition illegitimacy and the prospects for new development.