Vol. 2 No. 9 (September, 1992) pp. 119-120
THE SUPREME COURT AND PARTISAN REALIGNMENT: A MACRO- AND
MICROLEVEL PERSPECTIVE by John B. Gates. Boulder: Westview Press,
1992. 253 pp. $55.
Reviewed by Robert A. Carp (University of Houston)
Political scientists have learned much by studying the effects of
major political realignments on the electorate and on policy
making by Congress. Considerably less is known about the
interactions between political realignments and judicial policy
making. Gates attempts to address this lacuna in our knowledge by
asking and responding to questions such as these: Is Supreme
Court decision making merely a reflection of national conflict
that eventually serves to polarize the nation's political
parties, or do High Court decisions serve to thwart party
realignment following a critical election? Does judicial review
serve to legitimate the policy agenda of a new majority party or
stand in opposition to it?
To address queries such as these Gates examines four key eras in
American political history: the Civil War realignment between
1837 and 1878, the partisan realignments during the 1890's, the
New Deal realignment which covers the period between 1911 and the
end of World War II, and, finally, the critical elections of 1960
and 1964. Unlike many previous studies that focus on these
topics, Gates includes in his data base cases where the Supreme
Court overturned state as well as federal cases. He argues that
especially in the early years such inclusion was essential
because "state legislatures were the primary forums for most
economic legislation until the early part of the twentieth
century" and that these issues "were central to
realignment in the 1890s and 1930s (p. 168)." Furthermore,
he contends that "partisan majorities at the state level
often provoke a national response when the policies deal with
realigning issues or simply with volatile political issues"
(p. 168). Using both federal and state cases, Gate's data base
consists of 743 cases in which U.S. and state laws and state
constitutional provisions were held to be in violation of the
U.S. Constitution. He then combines an empirical analysis of
these cases with a superb and insightful analysis of the existing
historical literature on the various roles ascribed to the
Supreme Court in terms of its function vis-a-vis political
realignments. All of this is then carefully woven into the
general narrative.
Gate's conclusions are mixed for the first period he examined,
the High Court's nullification of federal and state policies
between 1837 and 1878. After noting that the slavery, Civil War,
and Reconstruction cases represented only a small portion of this
era's data set, he concluded that there was not a strong
relationship between the highly salient issues precipitating the
critical 1860 election and Supreme Court decisional patterns.
Furthermore Gates acknowledges that his data set "produces
only marginal support for the two primary roles attributed to the
Court (mentioned in the very first paragraph) in periods of
partisan realignment" (p. 151).
In his look at the realignment of the 1890's, Gate's data support
propositions set forth by David Adamany (in 1980) and by William
Lasser's 1983 study of the income tax cases. In both federal and
state cases the Supreme Court "helped to shape the majority
party's position on the critical issues before the election of
1896" (p. 89). Furthermore, Gates notes that the Court's
continuing efforts to thwart organized labor and those who would
regulate and tax business indicate a long-term impact on national
policy as the majority Republican party maintained its dominance
of the Supreme Court.
Looking at the period of the New Deal realignment, Gates finds
evidence for the proposition (articulated by Adamany in 1980)
that the Court contributed to the policy stance of the majority
party in the period before a critical election. His analysis of
"the cases of state policy invalidation support this
proposition" (p. 133) The other proposition explored by
Gates is that there will be policy conflict between the High
Court and the new majority party in the period following a
critical election. His findings for this second proposition are
"somewhat mixed outside of the renowned federal cases"
(P. 133), but for the most
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part he contends that the policy conflict between the "old
regime" and the New Deal coalition extended to both the
federal and the state arenas.
Finally, Gates takes a look at the critical elections of 1960 and
1964. Here his data serve to validate the proposition that the
Court can serve an agenda-setting role prior to critical
elections. He concludes: "The Court, as a member of the
national majority coalition, made important policy directly
related to the issues leading to polarization and did so with
increasing frequency from the mid-1950s through 1964. The Supreme
Court's invalidation of state policies in the period before the
critical election of 1960 illustrates vividly how judicial policy
focused attention on the position of the Democratic majority
party in the critical election of 1964" (p. 162).
In terms of a final, overall conclusion Gates indicates that over
time the Supreme Court has played both the role of being an ally
of the majority party before critical elections and the role of
pursing "old regime" policies after a new party has
been elected at a critical election. However, Gates believes that
the agenda- setting role for the Supreme Court appears most
frequently. Gates meticulously qualifies his conclusions; the
myriad of caveats throughout the text are indicative of his very
careful and cautious writing style.
The text is well written but it is clear that the author assumes
that the reader possesses knowledge of American political and
legal history and a thorough understanding of the role and
working procedures of the Supreme Court. While this is not
necessarily a weakness of the book, it does mean that its
potential audience -- in addition to all professional public law
scholars -- should probably be graduate students rather than the
general public or students at the undergraduate level. The index
to the book is quite acceptable, and the list of references in
the bibliography is excellent. The material in the appendices are
useful and serves to underscore the care and scholarship that
went into the preparation of the text. All in all, the book is
must reading for serious students of American politics, public
law, and the judicial process.
REFERENCES
Adamany, David. 1980. "The Supreme Court's Role in Critical
Elections), in B. Campbell and R. Trilling, REALIGNMENT IN
AMERICAN POLITICS (Austin: University of Texas Press).
Lasser, William. 1983. CRISIS AND THE SUPREME COURT: JUDICIAL
POLITICS IN PERIODS OF CRITICAL REALIGNMENT. Ph.D. Diss. Harvard
University.
Copyright 1992