The Supreme Court and Critical Elections

Abstract

Several years ago Professor Robert Dahl argued that the traditional concern over the Supreme Court's power of judicial review was largely unfounded. Dahl demonstrated that seldom, if ever, had the Court been successful in blocking the will of a law-making majority. This paper argues that, had Dahl considered his data from a different perspective, he would have discovered that, by virtue of the recruitment process, the Court will rarely even attempt to thwart a law-making majority. Examining Dahl's data in the context of the Survey Research Center's election classification scheme, the paper focuses on the Court's relation to patterns of partisan change to show that the traditional philosophic concern with the counter-majoritarian nature of judicial review is largely divorced from empirical reality and has relevance only during periods of partisan realignment within the political system as a whole. The paper buttresses the argument that the Court's “yea-saying” power is more important than its “nay-saying” power, a realization which can serve as the premise from which a logically consistent justification of the Court's power of judicial review may be dialectically constructed.