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Stuart Chinn

Abstracted from: Stuart Chinn, Race, The Supreme Court, and the Judicial-institutional Interest in Stability, 1 Journal of Law: A Periodical Laboratory of Legal Scholarship 95 (2011) (204 Footnotes)


      What factors influence judicial behavior? This is a familiar and important question for legal scholars and political scientists for at least three reasons: first, it carries significance for predicting case outcomes and more general legal developments; second, it implicates important considerations and constraints for normatively-minded scholars interested in advocating for particular legal outcomes; and, finally, it implicates important historical concerns regarding past developments in the law and why it was that in times past, certain legal outcomes materialized while others did not.

      Relevant to all three of these concerns, the goal of this Article is to identify and flesh out a specific determinant of judicial behavior that has escaped sustained scholarly attention in the recent literature. Stated simply, my thesis is that in the aftermath of transformative reforms that dismantle social hierarchies, the Supreme Court possesses an institutional interest in ““stability.” That is, in the peculiar context of post-reform periods, the Court has been inclined to stabilize, delineate, and clarify the boundaries between competing governing authorities and competing sets of rights within the recently-transformed policy domain. Furthermore, I make the additional claim in this Article that this judicial-institutional interest in stability has manifested itself in three specific types or “modes” of adjudication that recur in American constitutional history.

      The potential significance of this finding for those interested in the historical development of the law is obvious: if my claim is correct, and there are indeed broad recognizable patterns in Supreme Court rulings rooted in an institutional concern with stability, this would suggest an underlying dynamic that could explain prominent shifts in judicial behavior and in the law. The potential value of this finding would, at least in one sense, serve to contribute to a long and distinguished scholarly conversation over the fundamental mechanisms that shape American political and legal history.

      Indeed, historically-oriented scholars have, for decades, sought to periodize, divide, and conceptualize the tangled mass of events in American history according to certain fundamental mechanisms and analytical categories. Walter Dean Burnham, for example, was one of a group of prominent mid--twentieth century scholars who sought to periodize American history according to the logic of “critical realignment,” or the recurrence of certain critical elections that reshaped and reoriented political party dynamics for thirty year periods. This is the sort of analytical framework that one also commonly finds in high school history textbooks, where American history is divided into the Jeffersonian Era (inaugurated by the election of 1800), the Jacksonian Era (inaugurated by the election of 1828), and so forth.

      Relatedly, Bruce Ackerman has put forth a periodization of American legal history marked by a different logic: the successive entrenchment and repudiation of different “constitutional regimes” over time. In partial convergence with the critical realignment scholars, Ackerman identifies a Founding Regime, a Reconstruction Regime, and a New Deal Regime. And, finally, Karen Orren and Stephen Skowronek have more recently sought to conceptualize American political history as fundamentally characterized by an ever-present logic of “intercurrence.” Instead of periodizing history as a succession of different governing regimes, each dominant within a certain period of time, Orren and Skowronek assert that at any given moment in time, the polity is always composed of multiple governing regimes that are specific to different areas of public policy -each operating according to different governing principles. Dovetailing with the intellectual concerns of these scholars, the historical implication of my claim is that, perhaps, a similar fundamental logic might be at work in the actions of the Supreme Court -- at least with respect to the small, but highly significant subset of transformative periods in American history where there was a dismantling of social hierarchy.

      Perhaps less obviously, my claim also has bearing for those interested in both normative inquiries and legal controversies on the horizon. One possible upshot of my claim of a judicial-institutional interest in stability is the rather bleak suggestion that we can consistently expect the Court to exhibit hostility to liberal expansions of open-ended dismantling reforms. Due to its institutional predisposition toward promoting stability in the aftermath of these dismantling reforms, curtailment -- rather than expansion -- should be the default expectation of Court-observers during these periods.

      Thus, regardless of whether one may be in favor of, or opposed to, expansions of transformative reforms at a given moment in time, the claim offered here is that one's normative goals and political strategies should be cognizant of these institutional biases of the Court.

      Furthermore, as I elaborate below, I put forth the case that the Court's inclination towards stability during these particular moments manifests itself in specific types or modes of Supreme Court adjudication that recur in a particular sequence or order. If my claim about these adjudicative modes is correct, this should also have relevance for those interested in achieving certain normative goals, and for those interested in attempting to predict or speculate on future Court rulings. Indeed, since one of my historical case-studies encompasses the Supreme Court's constitutional equal protection rulings on race in the post--Civil Rights Era, I discuss recent cases like Grutter v. and Parents Involved in Community Schools v. Seattle School District No. 1, and offer some brief commentary on the likely character of future Supreme Court rulings on race and constitutional equal protection in light of the historical theory explored here.

      I begin in Part I with a brief survey of some of the leading theories of judicial behavior and legal change among political scientists and legal scholars in the more recent literature. I offer a general critique of many of these theories by arguing that none of them are precise enough to offer explanations as to why the Court adopts certain modes of adjudication at particular moments in supporting its conclusions. In light of these critiques, I flesh out my own theory of judicial behavior in Part II where I first offer a brief account of how dismantling reforms have historically reshaped social relations in American politics. I then elaborate on my core claim that in the aftermath of social hierarchy-dismantling reforms, the Supreme Court has been motivated by a judicial-institutional interest in promoting stability within the domain of reform. I continue in Part II with a discussion of how this judicial-institutional interest in stability manifests itself in distinctive modes of adjudication, and how each of these modes functions to promote stability in different ways in the aftermath of a dismantling. The modes of adjudication that I identify are, in turn, delimiting rulings, order-creating rulings, and tension-managing rulings. Finally, I conclude Part II with a brief discussion on the scope of my theory of judicial behavior.

      In Parts III, IV, and V, I substantiate my theory with a discussion of two historical case-studies: the Supreme Court's rulings on race in the aftermath of Reconstruction, and the Supreme Court's race and equal protection rulings in the aftermath of the Civil Rights Era. The question I ask is: if the Court had an interest in stability, would such an interest match up with the types of rulings that the Court did, in fact, issue in these historical eras? As I argue in these Parts, an institutional-interest explanation fares very well in accounting for the rulings from these historical eras.

      To facilitate comparative analysis, my case-study discussion is keyed to fleshing out these distinctive modes of adjudication. In Part III, I examine the delimiting rulings from both historical eras -- The Slaughter-House Cases, United States v. Cruikshank, The Civil Rights Cases, Milliken v. Bradley, Washington v. in Part IV, I examine the order-creating rulings from both eras -- Plessy v. Ferguson, Williams v. Mississippi, City of Richmond v. J.A. Croson Co., and Adarand Constructors, Inc. v. and in Part V, I address two tension-managing rulings -- Buchanan v. Warley, and Grutter v. Bollinger. Finally, in Part VI, I bolster the historical case for my theory of judicial behavior by comparing it against both an appointments theory of judicial behavior and a political-cultural theory of judicial behavior.

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      The primary thesis of this paper is that a judicial-institutional interest in political order has played an important role in influencing judicial behavior in certain, specific contexts. While the dominant theories of judicial behavior in the current literature emphasize the centrality of forces ““external” to the law in influencing shifts in judicial behavior, I understand my thesis to be at least a crucial supplement, and sometimes a qualified challenge, to those theories. As noted before, claims of a countermajoritarian Court acting wholly counter to prevailing political and social pressures do not arise in this paper, nor are such claims demonstrated in the case of the Supreme Court's post-Reconstruction and post-Civil Rights Era rulings on race. Rather, the focus on judicial-institutional interests is intended to offer insight into the nature of judicial behavior either when externalist influences are ambiguous, or when externalist influences allow for the possibility of more than one mode of judicial resolution -- which should usually be the case.


. Assistant Professor, University of Oregon School of Law.