Vol. 10 No. 1 (January 2000) pp. 13-15.

CAMPAIGNS AND THE COURT: THE U. S. SUPREME COURT IN PRESIDENTIAL ELECTIONS by Donald Grier Stephenson, Jr. New York: Columbia University Press, 1999. 363 pp. Cloth $49.50. Paper $19.50.

Reviewed by Thomas G. Walker, Department of Political Science, Emory University.

It is no longer controversial to declare that the Supreme Court is both a legal and a political institution. In fact, the political nature of the Court has been so well documented that it is a bit of a truism even to raise the issue. Politics influences all crucial aspects of the Court as an institution, from the selection of justices, to the decisions they make, to the impact of those decisions. A large body of research by judicial scholars has focused on the Court as a political actor.

In his recent book, CAMPAIGNS AND THE COURT, Donald Grier Stephenson, Jr., examines the political nature of the Court from a different perspective.
Rather than viewing the Court as a political actor, Stephenson examines those occasions when the Court has become a political object. The author's review
of American history leads him to the finding that the federal judiciary became embroiled as an issue in about one-fifth of all presidential election campaigns (1800, 1832, 1860, 1896, 1912, 1924, 1936, 1968, 1980, 1984, and 1992). This prompts Stephenson to ask the question, under what conditions does the Supreme Court become a significant issue in presidential campaigns? The author further inquires about the behavior of the Court following an election in which it has been the object of political controversy.

To address these questions Stephenson uses insights from four different literatures: political party evolution, presidential elections, judicial development, and constitutional development. With the eyes of a political scientist and the tools of an historian, Stephenson surveys the nation's political history beginning with the election of 1800. In doing so he develops five propositions to assist in understanding when the Court is drawn into presidential electoral politics and how the Court responds.

Stephenson's first proposition is that the Court is more likely to become a political issue when it has invalidated, rather than upheld, a policy choice made by the political branches. This proposition is consistent with common sense. When the Court validates a policy, the losing interests may be disappointed, but their wrath tends to be pointed toward the political body that enacted the policy rather than the Court. On the other hand, when the Court strikes down a policy, it becomes the chief offender. Furthermore, in exercising judicial review, the Court normally takes a position at odds with the political majority. Stephenson finds considerable support for his first proposition. Perhaps the most obvious example is the Court's striking down of New Deal legislation prior to the election of 1936. Stephenson,
however, does admit that occasionally the Court has become a

Page 14 begins here

political issue after validating an action. An example occurred in the election of 1896 after the justices had upheld the government's actions in the Pullman strike and the contempt citation against Eugene Debs.

The second proposition holds that when the Court is on the "losing side" of a presidential election in which it has been an issue, ensuing Court decisions in the short term will generate conflict with the new governing majority and this will lead to attempts to curb or otherwise restrict the Court. Stephenson finds mixed results when he applies this principle to presidential elections. The validity of the proposition tends to rest on whether the Court remains loyal to its pre-election policy preferences. If the Court does not alter its position, conflict with the new regime will occur and the Court once again will become a target during the next
presidential campaign.

Stephenson's third proposition holds that when the Court has been on the "losing side" in a realigning presidential election, it will make significant policy changes over the next decade to bring it into accord with the winning side. While there is considerable support for this proposition, it rests on certain events occurring. For example, it assumes that the new political regime will appoint new justices to the Court who will have policy views consistent with the political majority empowered by the election. When vacancies do not occur in sufficient numbers, conflict between the Court and the political branches may continue. The proposition's validity may also receive support when the winning majority moves previously divisive issues off the political/legal agenda to make room for new policy initiatives.

Fourth, the Court may be thrust into presidential politics because its rulings have brought to the forefront and clarified issues that divide the political parties. Usually the Court does not create such issues, but rules on a case involving a question over which the political parties are already divided. The Court's ruling may move the issue from the political back burner to the front, thereby "nationalizing" it. For example, the Supreme Court's decision in SCOTT v. SANDFORD (1857) certainly did not create the issue of slavery. Although the Court added its own twist to the issue, the case involved a controversy over which political interests were already deeply divided.

The fifth proposition holds that the Court tends to become an issue in presidential electoral politics during times in which there is widespread debate over the legitimacy of judicial review and the role of the Court in the political system. This proposition recognizes that the Court is particularly vulnerable because of three fundamental weaknesses: (1) that the legitimacy of judicial review rests on ambiguous authority, (2) that judicial review is essentially an anti-democratic function, and (3) that the Court tends to be a politically aloof institution.


After analyzing the historical record Stephenson reaches the reasonable conclusion that the Court likely will continue to remain a regular issue in presidential politics. Although there has been considerable discussion in recent years about the Court playing a diminished role in American politics, the range of issues the justices confront today remains much broader than was the case in the nineteenth century. In addition, political "hot button" issues continue to come before the Court on a regular basis. Whenever the Court rules on such questions it faces the prospect of

Page 15 begins here

becoming a target in the next presidential election campaign. Stephenson offers two possible strategies for the Court to reduce the likelihood of being drawn into the political fire. The first is for the justices to use their expanded certiorari jurisdiction to avoid cases presenting politically divisive issues. Second, the Court may attempt to "denationalize" controversial issues. An example of such an action is the Court's 1973 decision in MILLER v. CALIFORNIA in which the justices essentially opted out of the national controversy over obscenity and kicked that issue back to the states.

Although Stephenson's propositions impose an organizational structure and coherence to his arguments, the more impressive part of the book is the author's historical analysis. Each of the elections in which the Court was a political factor is discussed in great detail. Stephenson's work is backed by impressive documentation. One hundred pages of supporting materials and footnotes follow 240 pages of text.

The historical method, of course, allows Stephenson to provide nuanced analyses of the critical elections he studies. This method, however, makes it more difficult for him to arrive at definitive decisions regarding the acceptance or rejection of his propositions. While his theoretical side pulls him to derive generalizable propositions from the data, his historical tools push him toward the treatment of each election as a unique event. Stephenson's efforts to fit his data to his theoretical propositions are commonly filled with exceptions, conditions and partial confirmations. Such is the nature of his chosen method of analysis. A scholar applying
statistical modeling methods to the same historical data would come to more clear cut general conclusions, but would sacrifice the rich detail that is a
hallmark of Stephenson's work.

CAMPAIGNS AND THE COURT provides a different perspective on the Court as a political institution. It is an impressive piece of work that adds
nicely to Stephenson's already substantial record of providing careful and thoughtful historical examinations of the American judiciary.

CASE REFERENCES:

MILLER v. CALIFORNIA, 413 U.S. 15 (1973)

SCOTT v. SANDFORD, 19 How. 393 (1857)