New York Times

Law and Politics

February 20, 2014

by Linda Greenhouse

I first read about Robert A. Dahl’s death earlier this month in the Yale Daily News. Why would the editors of a student newspaper publish a Page 1 obituary of a 98-year-old political science professor who had retired from teaching well before any of today’s undergraduates were born?

The article made the answer obvious, as did obituaries in The Times and elsewhere: Robert Dahl all but created the modern field of political science, anchoring it at Yale, where he served as department chair and took on many other high-level responsibilities. The obituaries emphasized his work on democratic theory and constitutional structure. They gave less, if any, attention to his pathbreaking study of the Supreme Court.

Here is the opening paragraph of one of the best known among his hundreds of academic articles:

“To consider the Supreme Court of the United States strictly as a legal institution is to underestimate its significance in the American political system. For it is also a political institution, an institution, that is to say, for arriving at decisions on controversial questions of national policy. As a political institution, the court is highly unusual, not least because Americans are not quite willing to accept the fact that it is a political institution and not quite capable of denying it; so that frequently we take both positions at once. This is confusing to foreigners, amusing to logicians, and rewarding to ordinary Americans who thus manage to retain the best of both worlds.”

With its clarity of expression, the article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” might have been written yesterday (although, on second thought, probably not: modern political science articles are typically jargon-riddled.) In fact, it appeared in the Journal of Public Law 57 years ago. All these years later, it still has much to teach us.

Just think back two years, to the run-up to the Supreme Court’s argument and decision in the Affordable Care Act case. Pollsterswanted to know whether people expected the justices to base their decision on “ideology” or “law.” Presented with this either-or choice, most said ideology while a smaller number said law. It was one of Robert Dahl’s many insights to conclude not only that it’s both, but that a melding of law and politics is to be expected rather than feared or deplored. “It is an essential characteristic of the institution that from time to time its members decide cases where legal criteria are not in any realistic sense adequate to the task,” he wrote.

For understanding the Supreme Court’s behavior, Professor Dahl proposed what became known as the ruling-regime thesis. His observation was that “the policy views dominant on the court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.” His explanation was that through regular turnover and the inherently political process of presidential nomination and Senate confirmation, “the Supreme Court is inevitably a part of the dominant national alliance.”

There are, he acknowledged, exceptions: “short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions.” (My colleague Jack Balkin argues that we have entered such a period, from which a new constitutional regime will eventually emerge as the Republican Party loses ground against the forces of demographic change; he foresees a long and messy rather than short transition.) It’s also worth noting that Dahl was writing during a period of rapid and regular change in the Supreme Court’s membership; there had been six vacancies in the decade preceding his article’s publication in 1957.

By contrast, 11 years had passed without a vacancy by the time Chief Justice John G. Roberts Jr. took his seat in September 2005, the longest such period since the 1820s. Even so, it’s hard to argue that the court at that moment — at least before Samuel A. Alito Jr. replaced Sandra Day O’Connor four months later — was measurably out of whack with the country’s dominant political mood. Had Justice O’Connor remained on the court, the most unsettling and least popular decisions of the Roberts court so far, Citizens United and thedecision last June that eviscerated the Voting Rights Act, would most likely have come out the other way, assuming the court would even have agreed to take up those cases in the first place.

Professor Dahl saw potential peril to the court from overshooting the boundaries of the existing political consensus. While “the main task of the court is to confer legitimacy on the fundamental policies of the successful coalition,” he wrote, “there are times when the coalition is unstable with respect to certain key policies.” At such times, “at very great risk to its legitimacy powers, the court can intervene in such cases and may even succeed in establishing policy.” His implication was that such success comes at a price. Maybe the center of the Roberts court — what passes for the center, anyway — realized that danger when the court pulled back from what it had surely set out to do, trash affirmative action in university admissions, instead issuing a narrow ruling in the University of Texas case.

Once stated, Dahl’s thesis — that because the court is rarely out of sync with the political majority, its exercise of its power of judicial review shouldn’t be seen a threat to democratic theory — seems so intuitively obvious that it’s remarkable how long it took for the legal academy to accept or even acknowledge it. But for decades, law professors were in thrall to another way of looking at the Supreme Court that found judicial authority to be inherently problematic — “counter-majoritarian,” in the phrase coined by Alexander Bickel, a highly influential Yale law professor. What Professor Barry Friedman of New York University Law School calls the “academic obsession” with the so-called “counter-majoritarian difficulty” has slowly begun to recede; his 2009 book, “The Will of the People,” invokes American political history to challenge the Bickel premise.

A new generation of political scientists, while accepting Dahl’s basic point about the congruence of the court and majority politics, has proposed a more complex mechanism by which the congruence is achieved. In addition to the constant renewal of the court’s membership, these scholars see the justices as “strategic actors” who calibrate their own actions in awareness of how the legislative and executive branches are likely to respond. In that way, the court’s decisions are more likely to endure, and at a lower institutional cost. (See the Lilly Ledbetter decision of 2007, promptly overturned by Congress, for a newly empowered conservative majority’s aggressive overreach that failed.) “In short, the strategic model suggests that the role of the court in American society is not simply a function of the preferences of the court but of the other relevant institutions as well,” three political scientists, Lee Epstein, Jack Knight and Andrew D. Martin, wrote in a 2001 article in the Emory Law Journal.

That model may help explain the court’s past decade of intervention and retreat in the Guantánamo cases. The court’s decisions through the midway point of that period, invalidating the Bush administration’s initial policies and subsequent congressional action, conveyed its concern to the other two branches, first with a nudge and then with greater force. Having established a constitutional floor and perhaps perceiving themselves at the limits of the political system’s patience for judicial management of the “war on terror,” the justices then left the field.

I met Robert Dahl only once, late in his life. I didn’t have the presence of mind to ask him about the Ledbetter or Guantánamo sagas. The health care case was not yet on the horizon, let alone the same-sex marriage cases that seem to be making their way to the court at a velocity that would scarcely have been imagined just a few years ago. It would be wonderful to have the benefit of Professor Dahl’s insights. But it’s nice to know that his students, and even the students of their students, are hard at work trying to solve the Supreme Court’s enduring mysteries.