Vol. 14 No.10 (October 2004), pp.760-768

MAKING POLICY, MAKING LAW: AN INTERBRANCH PERSPECTIVE, by Mark C. Miller and Jeb Barnes (eds).  Washington, D.C.: Georgetown University Press, 2004. 256pp. Paper $26.95. ISBN: 1-58901-025-6.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: Richard.Brisbin@mail.wvu.edu  

The study of separation of powers once was a backwater in the study of American constitutionalism.  Often separated powers discussions focused on the constitutional technicalities of litigation about presidential misdeeds such as Watergate or affairs with bimbos.  Yet, during the past decade or so there have appeared a series of new studies of interbranch constitutional politics (Barnes 2004; Gillman 2004; Graber 1993; Lovell 2003; Whittington 1999, 2003).  Either influenced by or developed in reaction to the advent of positive political theory and separation of models games (Eskridge 1991; Ferejohn and Weingast 1992; Gely and Spiller 1990), these studies present a serious challenge to traditional depictions of checks and balances and the counter-majoritarian thesis about judicial power articulated by Alexander Bickel (1962).  More and more a collaborative or interactive political model of interbranch relations and the judicial review of federal policy has emerged.

This first-rate collection of original essays edited by Mark Miller and Jeb Barnes provides additional and more comprehensive support for a sophisticated, interactive political model of separated powers.  Although used at times as strawman by some of the authors, the primary theme of all the essays is the insufficiency of what they label the “standard” or “textbook” model of separated powers and interbranch relations.  Best defined in the concluding essay by Miller and Barnes (p.202, Chapter 12) and in a separate chapter by Barnes (Chapter 2), the standard model assumes a type of principal-agent relationship defines interactions between the federal judiciary and the Congress and presidency.  In the relationship the judiciary is an agent charged with the enforcement of the statutes and policy choices of the “political branches” and the occasional correction of the violation of basic constitutional principles.  Judicial policymaking or revision of the policies adopted by the other branches is counter-majoritarian and of dubious legitimacy.

In its stead, Miller’s and Barnes’ introductory and concluding chapters and Chapter 2, written by Barnes, posit an alternative model of federal interbranch relations.  According to this model the judiciary is less a police officer who checks and balances the actions of the “political” branches than a participant in an ongoing colloquy among federal institutions.  Together with the evidence provided by the other authors, this reader finds that the alternative model introduced by Miller and Barnes rests on at least the following principles:

1.          The federal judiciary is not just an implementer [*761] or enforcer of the policies of the “political branches.”

2.          The federal judiciary functions as an agenda-setter, catalyst for policy action by others, policy entrepreneur, and, especially, as a policymaker.

3.          The other branches also have multiple functions that blur the distinctiveness of each branch’s duties as stated in civic textbooks.

4.          The fragmentation of institutional power designed by the Framers, the growth of federal programs, and expanded interest group political activity has further blurred the boundaries of power between the branches.

5.          There is extensive interbranch political dialogue, discussion, and occasional turf warfare about overlapping powers and duties, and the judiciary participates in these interactions.

6.          Because of multiple modes of representation found in the Constitution, during interbranch political activity none of the branches can claim to be more representative of the public and more democratic than any other branch

7.          There is no final judicial determination of the powers and duties of each branch.

8.          Instead, the judiciary is involved in a “colloquy” that engages the justices in ongoing debates raised by politicians, citizens, and groups who often want federal policy action to address their needs but who—paradoxically—distrust government.

9.          There is variation in institutional roles and influence in interbranch relations or colloquies across policy arenas or political orders.

10.        The legal culture of adversarial legalism that has developed in the United States nourishes the judicial role in the colloquy.

With one exception, the authors employ institutional analysis to make the case for some or all of the principles of the alternative model.  Neglecting the editors’ arrangement, I find that three of the chapters address the value of the alternative model by an examination of interbranch relations, two examine the judicial and executive construction of statutes, and one addresses the construction of the Constitution by the three branches.  Although the other chapters also consider the value of the alternative model, these six chapters especially posit both more political limitations on the judiciary and more subtle judicial influence on public policy than the standard model proposes.

In the first chapter on interbranch relations (Chapter 3), Mark Miller depicts the judicial-congressional relationship as a conflict of “institutional cultures and institutional wills” (p.69).  He reveals this conflict, which he thinks has increased in intensity in recent years, by a review of recent congressional attacks on the courts, judicial confirmation fights, congressional decisions to ignore or overturn judicial interpretations, congressional efforts to cut judicial appropriations, and efforts to curtail court jurisdiction.  However, it is not clear from the chapter why the institutional conflict has expanded or why congressional reverence for the “integrity of the judicial branch” remains.  Perhaps the increased tensions reflect a deeper political tension over the New Right’s effort to give a new direction to regime politics while not [*762] appearing to be radically reshaping Americans’ reverence for the institutional symbols of their constitutional politics such as an independent judiciary.

Nancy Kassop’s chapter (Chapter 4) on the presidency and the courts thoroughly reviews the range of judicial opinions on presidential actions, the role of the president in judicial selection, and the ability of the executive branch to control or influence the litigation of statutory and related administrative matters.  Although her coverage of the interactions is comprehensive, her chapter lacks the more critical and analytic argumentation of most other chapters.  She notes only that the growth of presidential duties has expanded the range of presidential-judicial interactions.

Examining judicial-executive agency relations (Chapter 5), R. Shep Melnick veers in much the opposite direction.  Rather than summarize the often arcane aspects of judicial review of administrative action, to support a thesis about interbranch relations Melnick summarizes three constitutional developments since 1937—the nature of judicial oversight of regulatory and other rulemaking by an expanded bureaucracy, changes in the constitutional duty of agencies to provide due process and equal protection, and judicial treatment of agency oversight of programs mandated for state and local implementation.  He contends that these developments have expanded litigation and judicial policymaking.  Citizens and business, he finds, litigate more because they demand the federal government assist them but then find the programs fail to protect their interests as they had expected.  Then, they call in the judiciary to set standards, and the judiciary often obliges their request by policing procedures and making substantive policy.  Unfortunately, in the space of a chapter he cannot provide more detailed evidence of this process.

Larry Baum and Lori Hausegger (Chapter 6) provide an essay that extends their previous work on legislative overrides of judicial statutory interpretations.  They treat the standard model as positing that the judiciary seeks to secure its role as the final determiner of the meaning of statutes by acting to avoid congressional overrides of its interpretations.  To avoid overrides, acting as an “agent” they interpret statutes, and they adjust their preferred policy position toward the median ideological position of the Congress.  But, Congress as “principal” has the last word on statutory meaning.  However, they find that (1) Congress frequently overrides judicial interpretations by amendments to acts on other topics, (2) some overrides might be for symbolic purposes, (3) the court invites some of the overrides, (4) ideology is only one of several factors affecting overrides, and (5) interest groups promote many overrides.  Therefore, they regard the congressional-judicial relationship as symbiotic, frequently idiosyncratic, and dependent on interest group activity and, sometimes, constituency demands.  Also, they contend the relationship might be affected by the different institutional understandings each branch has of good law and good policy.  Although well-argued, their effort [*763] should encourage further empirical analysis to buttress what is a knowledgeable argument that uses descriptive information.

Mark Miller and Steven Bragaw (Chapter 8) then offer an essay on CITY OF BOERNE v. FLORES (1997) and the Religious Freedom Restoration Act of 1993 that suggests interbranch relations in statutory interpretation litigation can be exploited and complicated by the intervention of interest groups and local governments.  An intriguing case study, it raises the question: when and how often do other governments and interest groups attempt to manipulate the institutional differences between courts and Congress to their advantage?  Also, is the manipulation mostly through legal arguments, as in this study, or can it occur in other ways?

In Chapter 9 veteran separated powers scholar Louis Fisher summarizes the current state of constitutional relations among the branches.  By examining hot-button issues such as the death penalty, abortion, the right to die, and gay rights, he argues that the Supreme Court seldom “steps out” to initiate a change in constitutional interpretations.  However, when it does a “colloquy” emerges as Congress attempts to revise statutes or otherwise modify what the justices have written.  The justices often find the issue back on their agenda in modified form.  Consequently, he argues that, contrary to the standard model, the Court rarely has the final word on the meaning of constitutional rights.

                ***

Besides offering important support for the veracity of the assorted postulates of an alternative model of interbranch relations, these and other chapters offer support for three additional conclusions.

1.  The federal judiciary is more and more becoming a key player in interbranch relations. 

The reason for the expanded judicial role in interbranch relations, best explored separately in Chapter 1 by Robert Kagan, Chapter 2 by Barnes, and Chapter 5 by Melnick, has to do with American political culture and the construction of the federal regime.  Based on his work on adversarial legalism, or the resort to litigation in private and policy conflicts, Kagan examines environmental regulation in the Pacific Northwest. Using this case study and a summary of other evidence, Kagan asserts that adversarial legalism more and more characterizes interbranch relations.  Kagan’s theory and evidence for greater adversarial legalism have received criticism in other forums, most notably a series of reviews in LAW AND SOCIAL INQUIRY (2003, Vol. 28: 719-872).  However, if the reader agrees with Kagan’s assessment of the evidence, the critical question becomes: why adversarial legalism?  In his chapter Kagan primarily cites the fragmentation of power created by the system of separated powers and the ability of persons and corporations to employ rights to challenge government policies as the source of a judicial role in the policymaking process.  However, he also accounts for the expansion of adversarial legalism by citing changes in political culture—the rise of an activist [*764] government, a popular desire for “total justice,” expanded interest group efforts to influence policy, and the development of organized networks of activist lawyers.  Melnick somewhat revises this account.  He cites not just fragmented government but the increase of separate administrative agencies and programs to service popular and interest group demands and the increasing distrust of government as reasons for more judicial policymaking.

Although given greater emphasis in his other writings on the topic, Kagan implies that this entrenchment of a role for courts in the policy process is economically and socially costly.  Likewise, Melnick seems at the very least to regret the court’s new role.  However, Barnes argues that judicial policymaking should not be assessed on the basis of the legitimacy of a changed institutional role for courts but on its political results.  Therefore he asks whether the judicial role in policymaking prevents what the Framers defined as tyranny by a minority faction and whether it encourages broader public participation in policymaking.  Unfortunately, he leaves the questions unanswered.

2.  The courts are hardly ever counter-majoritarian institutions, and any claim that they can ignore the political interests of the other branches is overblown.

Although support for this conclusion surfaces in many of the chapters, chapters by Lee Epstein, Jack Knight, and Andrew Martin (Chapter 10), and Neal Devins (Chapter 11) especially provide limited evidence that supports it.  Using historical examples, Devins argues that the Supreme Court is attentive to congressional and majority public opinion.  When public opinion is divided or uncertain, the Congress will avoid risk and let the Court decide.  Any congressional or public opposition to judicial policies is usually sporadic, but it can cause the justices to adjust policy incrementally into accord within the “permissible limits of public opinion.”  He then uses the Court’s recent federalism decisions to illustrate his point that Congress creates the need and the space for judicial policymaking activity.

Alternatively, Epstein, Knight, and Martin employ a strategic model to assess whether or when the justices act in a counter-majoritarian direction in the interpretation of statutes and the Constitution.  The model rests on the hypothesis that the ideological direction of judicial voting should move into accord with the ideology of the political branches.  Assessing the model through the analysis of data on Supreme Court voting by Justices Hugo Black and Byron White in constitutional civil rights cases, they find evidence of the adaptation of the justices’ ideological pattern of voting to the ideology of the presidency.  Also, they find that over time the ideological direction of the entire Court moves toward the ideological position of the President and the Senate.  Based on this evidence they conclude that Robert Dahl (1957) “got it right.”  The justices tend to support the governing coalition, and the individual justices will adapt their decisions to support the preferences of the presidency [*765] and Congress.  Although the reader could ask for an expansion of their empirical evidence, this chapter delivers a body blow to the defenders of Bickel-style counter-majoritarian arguments about the Supreme Court.

3.  The meaning of interbranch relations is revealed by examining the political beliefs of the public and actions of interest groups as well as by investigation of the instrumental actions of federal officeholders.

In perhaps the most intriguing chapter (Chapter 7), Thomas Burke offers another perspective.  Using the example of the Americans with Disabilities Act (ADA), he first summarizes how judicial interpretation of the Act exhibits the power of courts in a separated powers system.  He identifies how the courts have acted instrumentally to advance their narrow rather than Congress’s broad conception of disability.  Second, he describes how the justices have effectively offset hostility to their interpretation – and policymaking – by giving victories to the disabled in visible cases.  Yet, he also strikes a third theme.  Neither branch ultimately had the capacity to control the meaning of the Act.  Instead, what mattered was how individuals and businesses devised their own meaning for the ADA from what they knew of the law from the media and word-of-mouth.

Burke obviously rejects the standard model of interbranch relations, but he also adds a final element to the alternative model:  The colloquy among the branches is reinterpreted by the public.  So, whatever arrangements of power the leadership of the branches arrange, it might mean something different to the public.  Moreover, as Burke notes (p.137), institutions external to government such as corporate personnel can shape popular experiences with the law and, hence, what the law means for the public.  For example, a recent study by Bill Haltom and Michael McCann (2004) reveals the ability of corporate interest groups to use the media to construct a tort “litigation explosion” when empirical information disproves such an event has occurred.  If their findings are more generally applicable, then popular understandings of the propriety of the policies and duties of each branch might be similarly reconstructed.  Interest groups or some politicians might use the media to construct the idea of an “activist” judiciary when, as the evidence in support of the alternative model indicates, judicial policy “activism” is largely directed to support the majority governing coalition or majority public opinion.  Yet, if they are skilled, these groups and politicians can induce public demands for adjustments in the interbranch colloquy.  Burke thus points toward an understanding of the “external” world of interbranch politics.  In this world beyond the branches, interest groups can manufacture knowledge and exploit the institutional features of the electronic media to define the function of the judiciary and create expectations about policymaking by the other branches.

If this interpretation of what Burke and Haltom and McCann intimate is accurate, it has great political significance and deserves further study. [*766] For example, the civic malaise and lack of trust of institutions existing in contemporary American politics might be traced to a “gap” between the standard model—which describes politics simply and in a form readily communicated by interest groups through the media such as judicial activism—and the complexity of the alternative model—a description that escapes ready explanation in a slogan.  People who use or who are encouraged to use slogans derived from the standard model find that reality is a government that just does not act as it is supposed to.  Also, politicians and interest groups can exploit the gap.  They might utilize a politics of slogans and rail against the complexity and fragmentation of federal government to gain office or influence over policy.  Or, because the public has no accurate standard to assess and criticize what they are doing, politicians and interests can assert their power and manipulate interbranch relations to serve their interests.  Thus, as Burke concludes, the interbranch “game” is “played on a field that is contoured by other actors.”

                ***

Since many of the arguments in these chapters have surfaced in other publications, this is not a pathbreaking collected work.  However, the chapters in this volume collectively strike a strong blow to the standard model.  They present an American interbranch politics that is far more fragmented and indeterminate than that presented in textbooks or by politicians.  It is politics in which law is less a boundary on power than tool for the pursuit of personal and economic power.  It is a politics that belies the popular assumptions that presidents can lead or that judges always serve as the defenders of political outsiders.  Therefore, it is extremely valuable to have such ideas compiled in one volume with a central theme – the alternative model.

Additionally, the essays provide significant reinforcement for the importance of two concerns expressed in some recent constitutional and judicial politics studies.  One concern is the need to consider courts in the broader political context.  Judicial politics has become focused on modeling the internal politics of appellate courts through analysis of models of voting behavior or the jurisprudential dissection of opinions.  But, judges do more than send ideological messages or craft legal arguments.  As these essays indicate, they act as participants in a fragmented and free wheeling debate about how we are governed.  Second, whether attitudinal, strategic, or jurisprudential, judicial politics assumes that judges are fixed on advancing their policy interests or policy interests masked in the garb of a jurisprudential position.  Institutional analysis requires recognition of the court as a participant in governing coalitions.  Judicial efforts to effect policy are both more bounded by other participants and are bounded in different ways than we might assume.  However, the judiciary is effective in doing things other than deciding cases, such as structuring the political agenda, supporting new policy ideas, and protecting the interests of the political majority.

Also, these essays suggest a research [*767] agenda.  Several, such as those by Baum and Hausegger and Epstein, Knight, and Martin, suggest topics for expanded empirical inquiry.  The propositions of the chapters with an historical presentation could be subjected to empirical testing or, as with Miller and Bragaw, further collection of historical information.  Second, the essays tend to discuss interbranch relations in general terms.  There remains a need to look more closely at judicial actions in different policy arenas or political orders.  Third, since most of the chapters focus on the U.S. Supreme Court, there is a need to see if or how lower federal courts treat interbranch relations.  With its limited docket, the Supreme Court decisions about interbranch relations might not disclose other important aspects of interbranch politics.

Because of its effective development of an alternative model of interbranch relations and forceful reconsideration of the textbook interpretation of separated powers, anyone with an interest in American political institutions ought to read this volume.  It is chock full of thoughtful and insightful scholarship on a central aspect of American governance.  Together its authors provide a comprehensive assessment of a more complicated and subtle explanation for the role of the judiciary and interbranch politics in America government.  They raise important questions for future research.  Most important, they reinforce the importance of the diverse roles the judiciary plays in national politics and policymaking.

REFERENCES:

Barnes, Jeb. 2004. OVERRULED? LEGISLATIVE OVERRIDES, PLURALISM, AND CONTEMPORARY COURT-CONGRESS RELATIONS. Stanford: Stanford University Press.

Bickel. Alexander M. 1962. THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. Indianapolis: Bobbs-Merrill Co.

Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” 6 JOURNAL OF PUBLIC LAW 279-95.

Eskridge, William N., Jr. 1991. “Reneging on History? Playing the Court/Congress/President Civil Rights Game.” 79 CALIFORNIA LAW REVIEW 613-674.

Ferejohn, John, and Barry Weingast. 1992. “A Positive Theory of Statutory Interpretation” 12 INTERNATIONAL REVIEW OF LAW AND ECONOMICS 263-279.

Lovell, George I. 2003. LEGISLATIVE DEFERRALS: STATUTORY AMBIGUITY, JUDICIAL POWER, AND AMERICAN DEMOCRACY. Cambridge: Cambridge University Press.

Gely, Rafael and Pablo T. Spiller. 1990. “A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases.” 6 JOURNAL OF LAW, ECONOMICS, AND ORGANIZATION 263-300. [*768]

Gillman, Howard. 2004. “Elements of a New ‘Regime Politics’ Approach to the Study of Judicial Politics.” Presented at the meeting of the American Political Science Association.

Graber, Mark. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” 7 STUDIES IN AMERICAN POLITICAL DEVELOPMENT 35-73.

Haltom, William, and Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago: University of Chicago Press.

Whittington, Keith E. 1999. CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING. Cambridge: Harvard University Press.

Whittington, Keith E. 2003. “Legislative Sanctions and the Strategic Environment of Judicial Review.” 1 I.-CON: THE INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 446-474.

CASE REFERENCE:

CITY OF BOERNE v. FLORES, 521 US 507 (1997).

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© Copyright 2004 by the author, Richard A. Brisbin, Jr.