PARTY WITH THE COURT: POLITICAL PARTIES AND THE NATIONAL JUDICIARY IN THE CREATION, MAINTENANCE, AND TRANSFORMATION OF POLITICAL ORDERS
Hays, Bradley David
Graber, Mark A.
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In the United States, the national judiciary plays a vital role in the creation, maintenance, and transformation of political orders. Political parties, the institutions primarily responsible for the operation of a political order, tend to be large and heterogeneous. This heterogeneity creates disjunction within the party and threatens to undermine partisan unity. In order to hold power over an extended period of time, parties-in-power must diffuse their intra-party tension. This dissertation explores the phenomena of parties using courts to diffuse intra-party tension by displacing highly divisive issues onto the national judiciary. This exploration reveals a pattern whereby the dominant wing of the party-in-power consistently secures its preferences through the courts to the detriment of minority wing preferences. To elucidate this pattern, three different political orders are examined. First, the Republican political order is examined to reveal how the dominant, conservative wing of the Party used the courts to protect against invasive regulatory schemes favored by the progressive, minority wing of the Party. Second, an examination of the New Deal/Great Society Democratic political order reveals the role the courts played in enabling the liberal, dominant wing of the Party to circumvent conservative, minority wing obstruction of civil rights and how the courts helped liberal Democrats woo African American voters so as to transform and liberalize the Democratic Party. Third, the period of divided government is detailed to reveal how the dominant, economically conservative wing of the Republican Party uses the Supreme Court to manage issues highly salient to the socially conservative minority wing. Judicial administration of religion in education, homosexual rights, and abortion resulted in the Republican Party eschewing those issues from its legislative agenda and, simultaneously, resulted in center-left policy consistent with dominant wing preferences. By judicializing social issues, the Republican Party created greater Party unity than what would otherwise be possible, which enabled it to rise to power at the turn of the 21st Century. The party-court dynamic has implications for judicial power, party government, and constitutional theory and each are explored in the conclusion.