Court-Centric Governance and the Nature of American Judicial Power

• In Event: Judging Independence: Perspectives on the Power and Autonomy of the Courts

Abstract

The judiciary dominates contemporary American politics. What gives the courts such power? When public law scholars discuss judicial power, the role of courts in American politics, and the political construction of judicial power changes, they tend to adopt a particular view of judicial power that is limited to courts’ ability to affect policy change. That definition, however, does not capture the more subtle ways that courts influence American politics, including by acting as arbiters of the separation of powers system and the conduit through which social movements push for durable political change when they do not want to deal with the messiness of legislative politics. In short, existing understandings of judicial power and its political construction omit a broader discussion of how court-centric American politics has become.

In this chapter, I argue that judicial power is the authority to trump other institutions and be the dispositive forum for political disputes. A powerful judiciary is one that successfully positions itself as the forum where big political disputes are resolved. Accordingly, the American judiciary relies for its power heavily on ideas about the courts’ proper role. In other words, we cannot discuss the increasingly dominant role that the federal judiciary plays in constitutional politics without understanding that judicial power depends on widely held assumptions about how constitutional politics does and ought to operate, and that the court features heavily in those assumptions. Existing accounts, which typically focus on formal rules and resource constraints, do not explain how an institution can become more influential without any rule change or resource increase, nor the ways in which courts rely on ideas to grow their power. By drawing on four case studies, I argue that, without those collective assumptions—that is, were the ideas not held widely—the courts would play a smaller role in American politics. By leveraging ideas that the courts are the Constitution’s defenders and final arbiter of all policy changes, courts dominate the American political conversation and dictate when other political institutions may govern.

Author

• Allen Sumrall, University of California, Irvine