Political Power and Judicial Power: Some Observations on Their Relation

This Essay summarizes and perhaps extends slightly some important recent work, mostly by political scientists, on the structural relation between the array of political power in a nation\u27s nonjudicial branch or branches and the way in which judicial review is exercised in relatively stable democracies. Robert Dahl\u27s classic article identified one such relation. According to Dahl, [e]xcept for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance. What, though, if there is no dominant national political alliance? Can anything systematic be said about the courts\u27 role during transitional periods? Recent scholarship suggests that Dahl describes only one part, albeit perhaps a large one, of a more complex picture. This Essay draws on that scholarship, dealing with constitutional adjudication around the world, to describe three patterns of relationship. Part I describes a form of partisan entrenchment similar to the one Dahl described. Part II describes a more dynamic form of such entrenchment. Part III describes a pattern of consensual delegation of policy-making authority to the courts. A brief conclusion suggests that the type of analysis in which I engage in this Essay will produce useful insights into constitutional law and politics if that analysis is extended and elaborated