The role of the Supreme Court in American Politics : The least dangerous branch? / Richard L. Pacelle Jr.

Format:

Book

Author/Creator:

Pacelle, Richard L., 1954-

Series:

Dilemmas in American politics

Language:

English

Subjects (All):

Judicial power--United States.

Judicial power.

United States.

United States. Supreme Court.

Physical Description:

xvii, 186 pages : illustrations ; 24 cm.

Place of Publication:

Boulder, Colo. : Westview Press, 2002.

Summary:

In The Supreme Court in American Polices, Richard Pacelle attempts to answer the question, "What is the proper role for a non-elected institution within a representative democracy?" He examines how non-elected judges should use their role of judicial review, and whether non-elected judges serve as protectors of the "insular minorities", i.e., those groups that lack access to political power. This book, a new title in the Dilemmas of American Politics series edited by Sandy Maisel, is a concise supplemental text for American Government and Judicial Politics courses.

Contents:

Introduction: A Five-Week Election Night Ends Up in the Supreme Court 1

1 The Supreme Court: Law or Politics? 7

Defining the Dilemma 11

Making Public Policy: Does the Supreme Court Take Part? 12

The Supreme Court 17

Unraveling the Dilemma 20

Statutory Construction: Changing the Meaning 23

Judicial Review 24

Overturning Precedent 26

Interpreting and Revising Constitutional Provisions 27

Evaluating the Role of the Supreme Court 28

2 The Historical Dimension of the Dilemma 33

The Marshall Court (1801-1835) 36

The Taney Court (1836-1864) 38

Substantive Due Process 39

The Preferred Position Doctrine: Selective Judicial Activism 42

The Burger and Rehnquist Courts: Return to Restraint? 45

3 The Democratic Dimension of the Dilemma: Unelected Policymaking 51

Democratic Theory and the Supreme Court 55

Policymaking Against Majority Will 58

Review Compatible with Democratic Values 60

Deliberately Undemocratic 62

Are the Elected Branches Democratic? 63

The Practical Realities of American Politics 66

A Pluralist Role for the Supreme Court 67

Rights and Liberties: The Province of the Supreme Court 70

Democratic Concerns Revisited 72

4 The Institutional Dimension of the Dilemma: Constitutional and Self-Imposed Limitations 77

The Limits of the Judicial Branch 80

Jurisdiction 84

Justiciability 86

Checks and Balances 92

Exposing the Supreme Court 96

The Power and Potential of the Supreme Court 98

5 The Judicial Capacity Dimension of the Dilemma: Does the Supreme Court Have the Ability to Make Policy? 105

The Supreme Court: Powerful Enough or Too Weak? 108

The Supreme Court's Ability to Make Policy 109

Assessing Judicial Capacity 111

The Indictment Against the Judiciary 116

Viable Alternatives to the Judiciary 119

The Case for Relative Capacity 120

Is Capacity A Barrier? 126

6 The Individual Dimension of the Dilemma: The Bases for Decisions 131

The Dilemma for the Individual Justice 135

Legal Factors in Decisionmaking 141

Problems with the Legal Factors 144

Extralegal Factors in Decisionmaking 147

Relying on the Constitution: Legal or Extralegal? 149

Reconciling the Two Perspectives 151

7 Toward Resolving the Dilemma: A Return to the Recent Past 155

The Mysterious Branch of Government Nobody Knows 157

Recognizing the Constraints and Potential 159

Designing a Role for the Supreme Court 162

Protecting the Court's Legitimacy 168.

Notes:

Includes bibliographical references (pages 171-186) and index.

ISBN:

0813367530

OCLC:

48447705