Page 25 - UCP_Template01_Sample

22 conclusion
1 supremacy has more often been “established by political invitation [than]
2 by judicial putsch” (Whittington 2007, 294; see also Graber 1993; Wasby
3 1981, 212– 16). Electorally accountable legislators and executives regu-
4 larly and repeatedly invite judges to resolve divisive policy conflicts, and
5 the judicial responses to these invitations often have broad public sup-
6 port. Likewise, Michael Klarman (2004) and Gerald Rosenberg (1991)
7 have long argued that rights- protecting judicial decisions lacking such
8 support tend to be ignored or successfully resisted. Even if Klarman and
9 Rosenberg pay undue attention to these responses as compared to other
10 possibilities— notably compliance, compromise, and innovation— it
11 seems clear that controversial rights- protecting judicial decisions are
12 rarely final in any meaningful sense. If these accounts of judicial review’s
13 actual operation in practice are accurate, then Waldron is tilting at wind-
14 mills. If, on the contrary, there is something to Waldron’s supposition that
15 rights- protecting judicial decisions frustrate the realization of the demo-
16 cratic will, then the regime politics and judicial impact scholars may be
17 underplaying the potential policy significance of such decisions.
18 On my reading of the recent record of abortion, affirmative action,
19 gay rights, and gun rights conflicts in US courts, neither of these exist-
20 ing accounts— nor the story of judges as umpires— captures precisely the
21 role that courts have been playing. As such, our ongoing conversations
22 about the significance and legitimacy of judicial power may be advanced
23 by a modest reframing of each line of inquiry.
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39

UCP_Fischel_FM.indd 22 Achorn International 05/21/2009 02:08PM UCP_Fischel_FM.indd 23 Achorn International 05/21/2009 02:08PM