Legislative Defaults
Interbranch Power Sharing and Abortion Politics
Bibliographic Data
| ID | 6355673 |
|---|---|
| Authors | Scott E Lemieux (College of Saint Rose), George Lovell, P George Lovell (0000-0003-2959-5370, University of Washington) |
| Year | 2010 |
| Volume | 42 |
| Issue | 2 |
| Pages | 210-243 |
| Publication date | 2010-04-01 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Polity (JOURNAL) |
| Journal identifiers | ISSN: 0032-3497 • E-ISSN: 1744-1684 |
| Publisher | University of Chicago Press (PUBLISHER • US) |
| DOI | 10.1057/pol.2009.16 |
| OpenAlex | W2031919360 |
| Language | EN |
| Citations received | 7 |
| References cited | 5 |
A generation of scholars has evaluated landmark Supreme Court rulings like Roe v. Wade with the assumption that counter-majoritarian judges are able to impose their will on elected legislators. Much recent scholarship on the courts has shown, however, that the assumptions about institutional power that underlie the counter-majoritarian model of judicial review are wrong. Judicial capacities to strike down laws are not fixed by constitutional design, but are largely the result of choices made by elected officials. As a result, scholars need to make careful empirical investigations into choices by elected officials that empower judges before declaring that a judicial decision thwarts the will of those elected officials. This article argues that in addition to looking at instances where legislators take overt steps to empower courts, scholars also have to consider whether legislators have defaulted to the courts. Examining the case of abortion after Roe v. Wade, we argue that there is little basis for the belief that the court's decision was necessarily "final." A constitutional barrier to bans on pre-viability abortions has developed largely because majorities among elected officials in the federal government and most states have supported (or declined opportunities to challenge) that policy. Rather than being an illustration of judicial supremacy, Roe v. Wade represents a "legislative default," that is, a case where a majority of legislators either favor the policy instituted by the courts or prefer to allow the courts to assume responsibility for resolving a divisive policy question
Default · Economics · Judicial activism · Judicial Independence · Judicial opinion · Judicial review · Law and economics · Legislation · Legislature · Political science · Politics · Scholarship · Separation of powers · Sociology · Supreme court · Supreme Court Decisions · Judicial and Constitutional Studies · Law · Legal and Constitutional Studies · Legal Systems and Judicial Processes
Judicial Federalism and Representation
Empirically Evaluating the Countermajoritarian Difficulty
Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings
Compared to What? Judicial Review and Other Veto Points in Contemporary Democratic Theory
Congressional Attacks on the Supreme Court
Movement Litigation and Unilateral Disarmament
The Supreme Court, Factions, and the Counter-Majoritarian Difficulty
| Unique citing works | 7 |
|---|---|
| Citations per year | 0,58 |
| Citation span | 2014 - 2018 (5) |
| Citation velocity | historical |
| Highly cited | No |
| Citation types | Neutral: 7 |