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Engel on the politics of attacking lawcourts

Abstract: How can we account for variation in politicians’ attacks on the courts? Why do more recent manifestations never seem to rise above rhetoric whereas nineteenth-century instances are characterized by measures taken to structurally weaken the federal judiciary? By investigating cases where anti-court actions are taken, i.e., jurisdiction stripping, court-stacking, judicial impeachment, etc., as well as cases where anti-court rhetoric is prevalent yet no disciplinary action follows, I develop a theory explaining this pattern. Rather than rely on norms of judicial supremacy as much of the current literature does, I suggest that rhetorical attack without follow-through is a rational strategy contingent on changes, over time, to extra-constitutional institutions, such as parties, that influence how constitutional institutions, such as the judiciary, are viewed by elected officials. While it is in the short-term electoral interest of members of Congress and the president to attack the undemocratic potential of the federal judiciary, exploiting the specter of a “countermajoritarian difficulty”, it is also in their long-term strategic interest to maintain judicial integrity and power as a potentially useful weapon with which to implement policy and ideological aims. Initial evidence is gathered from anti-Court rhetoric in the national party
platforms and special attention is paid to case selection and theory testing in the context of small-N research.

Stephen M. Engel, “Attacking the Court: A Theory of Political Contingency and Initial Findings Drawn from National Party Platforms,” unpublished paper. Available here.

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