The Regime Politics of Federal Judicial Selection - The American Bar Association and Federal Judicial Appointments in the 1960s South (original) (raw)
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SSRN Electronic Journal, 2005
Many judicial outcomes based on the substantial legal merits of the case could potentially be reversed if the case was decided on procedural grounds. Minority coalitions then have an incentive to signal to potential litigants that they would like to see the substance of the legal debate transformed onto a procedural dimension. This article presents a theory of judicial signaling, akin to Riker's (1986) theory of heresthetical manuevering, to Supreme Court justices' use of signals in dissenting opinions as agenda setting tools. The empirical tests of the theory show that when justices write dissenting opinions that signal a preference for transforming the substantive issue to one about federalism, there is an increase in future Supreme Court decisions resting on the basis of federal versus state power. Moreover, the coalition that had previously been in the minority is now in the majority, showing that the heresthetical strategy is systematically successful. Amendment. Writing for the majority, Justice Douglas agreed: …[W]hen private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations… [T]he public character of this park requires that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law. Evans v. Newton. 1 Thus, the Supreme Court ruled that the city had no right to transfer control of the park to a private authority, an authority which would then enforce segregation. Justice Black, dissenting, argued that the case did not have anything to do with race discrimination but was rather about states' powers to enforce wills and trusts: I find nothing in the United States Constitution that compels any city or other state subdivision to hold title to property it does not want or to act as trustee under a will when it chooses not to do so. The State Supreme Court's interpretation of the scope and effect of this Georgia decree should be binding upon us unless the State Supreme Court has somehow lost its power to control and limit the scope and effect of Georgia trial court decrees relating to Georgia wills creating Georgia trusts of Georgia property. A holding that ignores this state power would be so destructive of our state judicial systems that it could find no support, we think, in our Federal Constitution or in any of this Court's prior decisions. Black further argued that the Court did not have the right to hear the case as this decision should have been entirely within the providence of state powers and state courts: If the Court is holding that a State is without these powers, it is certainly a drastic departure from settled constitutional doctrine and a vastly important one which, we cannot refrain from saying, deserves a clearer explication than it is given. Ambiguity cannot, however, conceal the revolutionary nature of such a holding, if this is the Court's holding, nor successfully obscure the tremendous lopping off of power heretofore uniformly conceded by all to belong to the States. This ambiguous and confusing disposition of such highly important questions is particularly disturbing to me because the Court's discussion of the constitutional status of the park comes in the nature of an advisory opinion on federal constitutional questions the Georgia Supreme Court did not decide. Consequently, for all the foregoing reasons and particularly since the Georgia courts decided no federal constitutional question, we agree with my Brother HARLAN that the writ of certiorari should have been dismissed as improvidently granted. Justice Douglas' majority opinion did not consider the implications of the decision for the 1 382 U.S. 296 (1966).
Law & Social Inquiry, 2021
Nominations to the US Supreme Court have become increasingly important and contentious in America politics in recent decades. Reasons include the growing significance of constitutional law to the prospects of political power, accompanied by historical developments in the relative power of the competing party coalitions that have placed even more focus on the composition of the Court. Meanwhile, partisan conflict and stalemate have grown in the party systems and among We the People. In The Long Reach of the Sixties, Laura Kalman explores how the nomination struggles of Presidents Lyndon Johnson and Richard Nixon set the stage for the contemporary conflict besetting nominations and American politics more generally. Building on Kalman’s book, this review essay discusses the political and jurisprudential causes and implications of this conflict, with an eye toward what might lie ahead.