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Legislative Defaults

Interbranch Power Sharing and Abortion Politics

Bibliographic Data

ID6355673
AuthorsScott E Lemieux (College of Saint Rose), George Lovell, P George Lovell (0000-0003-2959-5370, University of Washington)
Year2010
Volume42
Issue2
Pages210-243
Publication date2010-04-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenuePolity (JOURNAL)
Journal identifiersISSN: 0032-3497 • E-ISSN: 1744-1684
PublisherUniversity of Chicago Press (PUBLISHER • US)
DOI10.1057/pol.2009.16
OpenAlexW2031919360
LanguageEN
Citations received7
References cited5

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

    Open Access•Jonathan P Kastellec•Journal of Law and Courts•2018

  • Empirically Evaluating the Countermajoritarian Difficulty

    Open Access•Jonathan P Kastellec•Journal of Law and Courts•2016

  • Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings

    Open Access•Scott E Lemieux•Perspectives on Politics•2017

  • Compared to What? Judicial Review and Other Veto Points in Contemporary Democratic Theory

    Open Access•David Watkins, Scott E Lemieux•Perspectives on Politics•2015

  • Congressional Attacks on the Supreme Court

    Open Access•Dave Bridge, Curt Nichols•Law & Social Inquiry•2015

  • Movement Litigation and Unilateral Disarmament

    Open Access•Richard S Price, Thomas M Keck•Law & Social Inquiry•2014

  • The Supreme Court, Factions, and the Counter-Majoritarian Difficulty

    Open Access•Dave Bridge•Polity•2015

  • Contested Lives

    Faye D Ginsburg•Contested Lives•1998

  • Beyond the “Countermajoritarian Difficulty

    Open Access•Scott E Lemieux, David Watkins et al.•Polity•2009

  • Designing Tests of the Supreme Court and the Separation of Powers

    Open Access•Brian R Sala, James F Spriggs•Political Research Quarterly•2004

  • Party, Policy, or Duty

    Open Access•Thomas M Keck•American Political Science Review•2007

Unique citing works7
Citations per year0,58
Citation span2014 - 2018 (5)
Citation velocityhistorical
Highly citedNo
Citation typesNeutral: 7

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