In Defense of a Political Court

By Terri Jennings Peretti | Go to book overview

CHAPTER 3
The Skeptics and the Idea of
Provisional Review

AN interesting development in several recent theories of judicial review is the idea of “provisional review.” Quite simply, provisional review would permit the political branches to check in some manner the constitutional decisions of the Supreme Court. This alternative type of review has been advocated by scholars such as Harry Wellington, Michael Perry, Paul Dimond, and John Agresto as a way to reconcile discretionary and subjective judicial review with democratic values. 1

Provisional review places a normative stamp of approval on the conclusions of various empirical studies regarding the finality of Supreme Court decisions. In his often-cited 1957 article, Robert Dahl argued that largely because elected officials recruit and select Supreme Court justices and turnover is relatively frequent, “the Supreme Court is inevitably a part of the dominant national political alliance.” As such, the Court has rarely opposed “national lawmaking majorities” and when it has done so, such policy opposition has not endured for long. In short, “lawmaking majorities generally have had their way.” 2

Judicial impact studies have additionally shown that compliance with Supreme Court decisions is neither automatic nor uniform. Because the Court lacks the power to enforce and fund its decisions, it is highly dependent on voluntary compliance, faithful application by lower court judges, and the active support of other branches and levels of government. 3

Additionally, Supreme Court decisions are themselves overturned or limited in their scope by subsequent decisions. This most typically occurs as a result of the deliberate efforts of the other branches to alter the Court's policy direction, for example by proposing constitutional amendments, refusing to fund or enforce the Court's rulings, attempting to restrict the Court's appellate jurisdiction, and, most significantly and effectively,

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