The Supreme Court and Political Eras: A Perspective on Judicial Power in a Democratic Polity

Abstract

American political history is often conceived as a series of stable eras, controlled by dominant party coalitions and demarcated by realigning elections, most often identified as those of 1828, 1860, 1896, and 1932. Since there is a lag in the corresponding reconstitution of the Supreme Court, it is often deemed a countermajoritarian drag on the workings of electoral democracy. An examination of judicial review in relation to political eras shows that view to be correct only in the New Deal era. Judicial review most commonly occurs within eras rather than across them, with a Court reconstituted by the prevailing coalition negating legislation passed by that coalition. This reality significantly alters the normative question of the Court's role in a democracy, and it raises questions about the concept of stable eras. The current trend of political party dealignment calls into question the continuing validity of the critical-elections approach.