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.