Sunday, April 29, 2012
In Law and Politics Book Review, Tom S. Clark reviews a timely book, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power by Stephen M. Engel. Clark writes that "Engel’s argument is essentially that the terms of constitutional political debate have evolved over the past 220-plus years and that the nature of political confrontations with the Court bears witness to those patterns."
Clark compliments Engels' historical and descriptive narrative,noting that his "knowledge of the content and nature of political attacks on the Court throughout American history is impressive." He finds Engels' explanatory theory of the "displacement of civic republicanism with liberal pluralism" provocative. But he wonders whether "the story is not that politics changed and as a consequence the Court has become “safe” from attacks on its legitimacy. Instead, the story could be that the Court has strategically taken steps to build a strong reputation among the public (the real source of power in American politics) and thereby cornered the politicians into a position where they can no longer actively threaten the Court, for fear of political reprisal from the public."
Yet Clark's own suggestion that the Court has solidified its power beyond approach might be vulnerable. The most recent example is public criticism of Scalia's conduct in the oral arguments in Arizona v. United States. There has also been a resurgence of interest in the question of whether Supreme Court Justices (and all federal judges) are guaranteed life tenure by the Constitution.
And in today's NYT "Sunday Review" prominent literary figure E.L. Doctorow essentially argues that the United States has become unexceptional: "indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world." Notable, Doctorow's essay begins and ends by focusing on the Supreme Court, with a healthy dose of Court-blaming in the middle. Definitely worth a read for the way in which the Court is being implicated in political rhetoric.
Situating the current rhetoric in the history that Engels and Clark provide adds necessary depth to our contemporary understandings.