Court action allows Congress to avoid political backlash.

Political leaders in such a situation will have reason to support or, at minimum, tolerate the active exercise of judicial review. In the American context, the presidency is a particularly useful site for locating such behavior. The Constitution gives the president a powerful role in selecting and speaking to federal judges. As national party leaders, presidents and presidential candidates are both conscious of the fragmented nature of American political parties and sensitive to policy goals that will not be shared by all of the president’s putative partisan allies in Congress. We would expect political support for judicial review to make itself apparent in any of four fields of activity: (1) in the selection of “activist” judges, (2) in the encouragement of specific judicial action consistent with the political needs of coalition leaders, (3) in the congenial reception of judicial action after it has been taken, and (4) in the public expression of generalized support for judicial supremacy in the articulation of constitutional commitments.

Although it might sometimes be the case that judges and elected officials act in more-or-less explicit concert to shift the politically appropriate decisions into the judicial arena for resolution, it is also the case that judges might act independently of elected officials but nonetheless in ways that elected officials find congenial to their own interests and are willing and able to accommodate. Although Attorney General Richard Olney and perhaps President Grover Cleveland thought the 1894 federal income tax was politically unwise and socially unjust, they did not necessarily therefore think judicial intervention was appropriate in the case considered in more detail later (Eggert 1974, 101– 14). If a majority of the justices and Cleveland-allies in and around the administration had more serious doubts about the constitutionality of the tax, however, the White House would hardly feel aggrieved. We should be equally interested in how judges might exploit the political space open to them to render controversial decisions and in how elected officials might anticipate the utility of future acts of judicial review to their own interests.

It should be emphasized that the possibility of friendly judicial review does not mean that the Court will simply do the bidding of political leaders. Politicians do not know with certainty what the justices will do if presented with a given piece of legislation. Although presidents may hope that the Court will act in a given case, they may well be disappointed. When signing campaign finance reform, President George W. Bush virtually drew a roadmap of the statutory provisions that he hoped the Court would strike down, but a majority of the justices imposed only modest constraints on the congressional authority to regulate political campaigns (Bush 2002, 517; McConnell v. Federal Election Commission 2003). Striking down that statute might have won favor from the president who had signed it, but the Court merely behaved in the politically conventional manner by lending its legitimacy to the law.

At other times, the justices might well act on their own constitutional understandings even when those understandings are not shared by political leaders or when their expression is not desired. The political logic for such instances of unfriendly and unwelcome judicial review will have to be rather different from those described here. If the obstruction is relatively minor, as when the Court struck down Theodore Roosevelt's Employers' Liability Act as being drafted too broadly while indicating that the law's aims were constitutionally legitimate, then the Court's accumulated political capital might encourage leaders to simply yield to or work around the Court's rules (Employers' Liability Cases 1907; Pickerill 2004). If the obstruction is more serious, as when the Hughes Court blocked major components of the New Deal or when the early Warren Court extended the constitutional protections of suspected Communists, then the political reaction might be more severe and the strength of the Court's diffuse support might be tested. Not all episodes of judicial review take the collaborative form described here. The possibility of friendly judicial review, however, gives political leaders reason not only to tolerate the Court when it behaves in politically difficult ways but also to actively support the Court and help build a reservoir of public goodwill when it behaves in politically useful ways (Whittington Forthcoming).

I consider here three common barriers to successful action on ideological agenda items for political coalitions in American politics: federalism, entrenched interests, and coalitional heterogeneity. It should be noted that particular instances of judicial review may often involve more than one political logic. An instance of judicial review may well involve state action, for example, even when the structural obstacle of federalism is not the central political dynamic involved in the case. In each case, the central logic of the obstacle and how the exercise of judicial review may be useful for overcoming it is sketched out. In each instance, the Court is able to do what national political leaders are either constitutionally incapable of doing or politically unwilling to do themselves, and in doing so the Court runs with rather than against the interests of powerful political officials. An empirical illustration of this dynamic at work in significant episodes in American history is then provided. These cases are clearly not sufficient to indicate how much of the Supreme Court's exercise of judicial review can be explained in these terms, but they are sufficient to suggest that this dynamic has been a notable component of the political support for judicial review in the United States and has been relevant to substantively important episodes of activism by the Court, thus expanding our conceptual toolkit for understanding the politics of judicial review.