Does the Supreme Court, as Mr. Dooley said, follow “th’ iliction returns,” or does it, as Justice Robert H. Jackson complained in 1941, the very year he assumed his seat, serve as “the check of a preceding generation on the present one”? Neither, argues Taylor, a political scientist at Washington College, Maryland.

If the Court did tend to lay the dead hand of the past on the pressing work of a new era, then one would expect that after “critical” elections in which basic electoral realignments occurred — the elections of 1828, 1860, 1896, and 1932 — there would have been a high level of conflict between the “old” Court and the “new” president and Congress.

Instead, Taylor finds, of the 92 instances in which the Court voided acts of Congress through 1968, only 25 took place during such “lag” periods—and only 19 involved legislation enacted by the new regime. Moreover, 12 of those 19 cases occurred during the New Deal era.

That unusual experience was undoubtedly fresh in Jackson’s mind when he leveled his charge against the Court in 1941. But 19 cases in 178 years, notes Taylor, “is not an impressively high number.”

If humorist Finley Peter Dunne’s Mr. Dooley was correct, one would expect, conversely, that once the Court had gained a sufficient complement of new justices, it would begin revising legislation from the earlier era. Not so, Taylor finds. Of the 92 instances of judicial review, 67 occurred after a new majority had established itself on the Court, but only two altered laws from the previous era.

Surprisingly, the Court was much more likely to overturn legislation enacted during its own era.

“The Supreme Court is not normally a generation behind, nor is it a slavish adherent to the latest electoral trend,” Taylor concludes. Politics, for the justices, is less a matter of political parties and transient elections than of constitutional issues and judicial philosophy.

The Court’s power tempers, and is tempered by, the political power of the two elected branches of government. Interacting with them in complex ways, the Supreme Court is “a major participant in an ongoing process, and it is in the mundane vibrations of power in that process, day in and day out, that the genius and the explanation of the system lie.”



The Wilson Center has published the above since 1976.

Winter 1993. (Pg. 14)

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