The Judicial Power of the Purse: How Courts Fund National Defense in Times of Crisis

By Tushnet, Mark | Law & Society Review, December 1, 2012 | Go to article overview

The Judicial Power of the Purse: How Courts Fund National Defense in Times of Crisis


Tushnet, Mark, Law & Society Review


The Judicial Power of the Purse: How Courts Fund National Defense in Times of Crisis. By Nancy Staudt. Chicago: University of Chicago Press, 2011. 199 pp. $25.00 paper.

I find this a peculiar book. Its core finding is well-supported, clearly presented, and consistent with a related literature, and yet many of the details seem off-key. In part that seems the result of an overly elaborate theoretical account, whose own details require qualification to accommodate findings in tension with the theory. Readers can take away the central finding, rely on a simpler, less theorized explanation, and leave the specifics behind.

The core finding is this: The federal courts, and especially the Supreme Court, respond to their perception that the nation is facing a foreign policy crisis, particularly a crisis of national defense, by becoming more receptive to claims for revenue asserted by the national government in tax, public contract, and similar cases implicating the government's fiscal resources. The cases are not about foreign policy, or about revenue measures directly related to the crisis, but the courts appear to be concerned about ensuring that the government has the resources it needs to deal with the crisis. This finding parallels findings about judicial responses to rights-claims during war time (Epstein et al. 2005).

The theory behind the finding is that the courts receive signals from Congress and the executive-sometimes consistent with each other, sometimes less so-about the existence of a crisis, and infer from those signals the need for fiscal resources. The signals trigger judicial responses because the judges prefer safety over risk, and believe (or act as though they believe) that spending money will enhance safety. The book's first chapter establishes, to the extent that it needs to be established, that justices are aware of and sometimes refer to national fiscal needs in their deliberations and decisions. The book then offers statistical tests linking signals the courts receive to the voting behavior of individual justices and of the Court as a whole, with some analysis of the behavior of courts of appeals.

I think it unclear what the theoretical account adds to common sense, that judges live in the world and participate in the general culture. And sometimes the need for theory produces odd results. So, for example, Staudt rejects as "obviously . . . flawed" (p. 67) the claim, developed in detail by Mary Dudziak (2012), that the United States has been in a condition of emergency for much of the twentieth century. …

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