ISSN 1062-7421
Vol. 12 No. 1 (January 2002) pp. 18-20.

THE ROLE OF THE SUPREME COURT IN AMERICAN POLITICS: THE LEAST DANGEROUS BRANCH? by Richard L. Pacelle, Jr. Boulder CO: Westview, 2002. 186 pp. Paper $20.00. ISBN: 0-8133-6753-0.

Reviewed by Thomas R. Marshall, Department of Political Science, University of Texas at Arlington.

Richard Pacelle's recent book, THE ROLE OF THE SUPREME COURT IN AMERICAN POLITICS, is a welcome addition to upper-level classes in public law
and judicial politics.

A recent addition to Westview's growing list of books on American politics, Professor Pacelle's book focuses on the U. S. Supreme Court's much-debated role in the American political system. The introduction and first chapter review the unexpected role the Supreme Court played in settling the 2000 presidential election, and raises the central question: exactly what role should the U.S. Supreme Court play? Unexpected as the Florida recount issue may have been, it does not stand alone. Abortion, busing, and affirmative action (to name but three prominent examples) also are areas in which the U. S. Supreme Court has virtually defined public policy. The book capably reviews the long-standing debate over judicial review, activism, and restraint. It also raises the question of legitimacy, and notes that the U. S. Supreme Court has long been a policy-making institution.

Chapter Two reviews the Supreme Court's periodic flip-flops in policy-making. The discussion ranges from the early Marshall Court's pro-federal views, to the mid-1800s' slavery disputes, to the pro-business views of the late 1800s and early 1900s. The Great Depression led a refocused Court to abandon substantive due process in favor of the preferred position doctrine, a theory later expanded upon by the Warren Court's expansive rulings, and then trimmed back by the Burger Court. More recently, the Rehnquist Court virtually abandoned the preferred position theory in favor stronger protections for economic rights and a federalism-oriented jurisprudence.

Chapter Three returns to the dispute over what unelected, life-tenured federal judges should do, and whether the Supreme Court should take on an active role in American political life. Chapter Four considers the Constitutional and procedural limits on the Supreme Court's role. Chapter Five expands that discussion further by considering the practical limits on the Supreme Court--for example, problems in implementation, disappointed hopes and expectations, the special difficulty of redistributive or complex lawsuits, and a lack of expertise and staff. The book also usefully points out that the Court can act as a "shock" to a status-quo, inertia-bound, politically-deadlocked Congress, and can successfully raise long-dormant issues to high visibility. Indeed, the Supreme Court may be the perennial
"wild card" in American politics.

Chapter Six reconsiders the Supreme Court from the individual justice's

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perspective. What should the nine justices do with their time? Promote individual rights and civil liberties? Uphold key precedents? Unscramble original intent? Vote their own sincere or at least strategic policy preferences? As Professor Pacelle points out, justices usually closely follow their own policy preferences, although they may couch their choices in loftier terms. The final chapter reconsiders the Supreme Court's role, arguing that it should return to the preferred position theory and
aggressively protect civil rights and liberties. Professor Pacelle also cites BUSH v. GORE (2000) to note that the Supreme Court seldom suffers much apparent damage even from highly-controversial and closely-decided rulings.

THE ROLE OF THE SUPREME COURT IN AMERICAN POLITICS not only usefully reviews the long-standing dispute over what the Supreme Court should be doing. It can also serve as a springboard for lively class discussions and as background for imaginative case studies and term papers. For example, students might each pick a prominent recent Rehnquist Court ruling (say, medical marijuana, assisted suicide, HMO lawsuits, or extended jail terms for violent sexual offenders) and research what followed the ruling. Was there any serious attempt to reverse the ruling? Widespread media or public criticism? A pattern of lower court evasion? Congressional hearings? Any follow-up court cases yet appealed to the Supreme Court? Public opinion poll support or opposition? A series of focused case studies would likely drive home to students Professor Pacelle's argument that the modern Supreme Court is usually a relatively, albeit not completely successful policy-maker.

Alternatively, sections of the book could be used as to set up a roundtable debate in class on what arguments the Supreme Court uses. Students might be assigned to brief a half dozen majority, concurring, or dissenting opinions, and code what type of legal justification each justice uses in his or her opinions. Precedent? Stare decisis? Preferred position? Original intent? The living constitution? Several chapters could lead to student research projects into the Supreme Court's workings and a lively classroom debate.

Probably like most constitutional law and judicial politics scholars, Professor Pacelle argues that the Supreme Court should resurrect the now out-of-fashion preferred position doctrine. Yet he acknowledges that none of the current Supreme Court's justices (even the Court's liberal justices) now rely heavily on that doctrine. Indeed, having apparently passed out of fashion, what are the odds that the preferred position theory will rise again to the top of the Supreme Court's jurisprudence. Do any of President Bush's likely nominees (such as White House counsel and former Texas Supreme Court justice Al Gonzales) to the Supreme Court seem likely to favor the preferred position theory, or will they be "Rehnquist Light"? Students could usefully spend a session debating whether the preferred position theory is a historical has-been.

Here's a fourth example of another argumentative essay question or a roundtable debate for students: what do they believe the Supreme Court should be doing with its 75 or so rulings each term during the coming decade? Why? What are the consequences if the Supreme Court never returns to the preferred position at all, and if that doctrine simply becomes yet another passing phase in the Supreme Court's checkered history? What does it matter if

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the Rehnquist Court's view of its own role prevails historically and for the coming decades the Supreme Court usually takes appeals to protect individual and corporate economic rights, police the boundaries of federalism, and insist on judicial restraint? Do today's students care? Think it would be a mistake? Think it would be better? One sees a lively seminar roundtable on this and so many other topics raised in this short and interesting book.

These examples serve only to suggest a few ways in which this short and engaging book might spark a classroom discussion on the Supreme Court's complex role in American politics. As the example of BUSH v. GORE famously suggests, political science students should not neglect the Supreme Court's ability to reshape American politics.

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Copyright 2002 by the author, Thomas R. Marshall.