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

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Polity

Abstract

In merging the theories and assumptions of the regime politics and political party literatures, this article identifies a rare but important type of “counter-majoritarian difficulty,” that is, a situation where the Supreme Court makes policy against the political will or preferences of a majority. When the Court rules in favor of the dominant political party’s preferences on issues that are of secondary importance to the party, the Court can paradoxically trigger a cross-partisan alliance built around the very premise of undermining the judiciary. Using case studies from the mature New Deal—including communism, school prayer, busing, and abortion—this article shows how non-leading factions in the Democratic Party allied with Republicans to form grassroots, congressional, and electoral majorities. These three majorities, inadvertently created by the Court, successfully obstructed implementation, curbed the Court, and helped realign the party system, respectively.

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Notes

  1. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New York: Bobs-Merrill Co., 1962).

  2. As will be explained, we might expect these types of cases after the dominant coalition has “matured.” See Curt Nichols and Adam S. Myers, “Exploiting the Opportunity for Reconstructive Leadership: Presidential Responses to Enervated Political Regimes,” American Politics Research 38 (September 2010): 806–41.

  3. This study, therefore, builds on research on the Court’s role in exposing divisions within the national governing coalition, especially during the 1960s and ‘70s. I offer a more explicit framework (including assumptions and expectations) for studying such questions, some new data points (e.g., on court-curbing proposals), and the notion that cross-partisan majorities can strike at the grassroots, congressional, and/or electoral level. See: William Lasser, The Limits of Judicial Power: The Supreme Court in American Politics (Chapel Hill: The University of North Carolina Press, 1988); Michael Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” Virginia Law Review 82 (February 1996): 1–67; Howard Gillman, “Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism,” in The Supreme Court and American Political Development, ed. Ken Kersch and Ronald Kahn (Lawrence: The University Press of Kansas, 2006): 138–68; and especially, Kevin McMahon, Nixon’s Court (Chicago: University of Chicago Press, 2011).

  4. Bickel, The Least Dangerous Branch, 16–17.

  5. Barry Friedman, “The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five,” Yale Law Journal 112 (November 2002): 153–59.

  6. One critique of the counter-majoritarian difficulty is that it pigeonholes the definition of democracy to equate with majoritarianism. For this reason, while I do try to unpack possible counter-majoritarian instances, I do not discuss whether judicial review is “democratic.” Put simply, articulating a more comprehensive definition of democracy is beyond the scope of this essay. For an excellent review, see Scott E. Lemieux and David J. Watkins, “Beyond the ‘Countermajoritarian Difficulty’: Lessons from Contemporary Democratic Theory,” Polity 41 (2009): 30–62.

  7. See Cornell W. Clayton and David May, “The New Institutionalism and Supreme Court Decision-Making: Toward a Political Regimes Approach,” Polity 32 (Winter 1999): 233–52; Keith E. Whittington, “Once More Unto the Breach: Post-Behavioralist Approaches to Judicial Politics,” Law and Social Inquiry 25 (April 2000): 601–34; Howard Gillman, “Regime Politics, Jurisprudential Regimes, and Unenumerated Rights,” University of Pennsylvania Journal of Constitutional Law 9 (October 2006): 107–19; Jeb Barnes, “Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making,” Annual Review of Political Science 10 (2007): 25–43; Thomas M. Keck, “Party Politics or Judicial Independence: The Regime Politics Literature Hits the Law Schools,” Law & Social Inquiry 32 (Spring 2007): 511–44.

  8. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 293.

  9. See also David Adamany, “The Supreme Court’s Role in Critical Elections,” in Realignment in American Politics, ed. Bruce Campbell and Richard Trilling (Austin, TX: University of Texas Press, 1980): 229–59; John B. Gates, The Supreme Court and Partisan Realignment: A Macro and Microlevel Perspective (Boulder, CO: Westview Press, 1992); Keith Whittington, “Legislative Sanctions and the Strategic Environment of Judicial Review,” International Journal of Constitutional Law 1 (July 2003): 446–74.

  10. Robert G. McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 2000), 230.

  11. Howard Gillman, “Robert G. McCloskey, Historical Institutionalism, and the Arts of Judicial Governance,” in The Pioneers of Judicial Behavior, ed. Nancy Maveety (Ann Arbor: University of Michigan Press, 2006), 338.

  12. Robert G. McCloskey, The Modern Supreme Court (Cambridge: Harvard University Press, 1972), 307–08.

  13. Martin Shapiro, “Political Jurisprudence,” Kentucky Law Journal 52 (1964): 294–45; Herbert M. Kritzer, “Martin Shapiro: Anticipating the New Institutionalism” in The Pioneers of Judicial Behavior, ed. Maveety, 387–17.

  14. Martin Shapiro, “Chief Justice Rehnquist and the Future of the Supreme Court,” in An Essential Safeguard: Essays on the United States Supreme Court and Its Justices, ed. D. Grier Stephenson, Jr. (Westport, CT: Greenwood Press, 1999), 146.

  15. Martin Shapiro, Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence (New York: Free Press of Glencoe, 1964); Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981); Martin Shapiro, “Public Law and Judicial Politics,” in Political Science: The State of the Disciple II, ed. Ada W. Finifter (Washington, DC: American Political Science Association, 1993): 365–81; Howard Gillman, “Martin Shapiro and the Movement from ‘Old’ Institutionalist Studies to ‘New’ Institutionalist Studies in Public Law,” Annual Review of Political Science 7 (2004): 363–82.

  16. Keith Whittington, “ ‘Interpose Your Friendly Hand’: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” American Political Science Review 99 (November 2005): 1–14.

  17. Kevin J. McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago: University of Chicago Press, 2004).

  18. Mark A. Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development, 7 (Spring 1993): 35–73; Cornell W. Clayton, “The Supply and Demand Sides of Judicial Policy-Making,” Law and Contemporary Problems 65 (Summer 2002): 69–86; George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (New York: Cambridge University Press, 2003); Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (New York: Cambridge University Press, 2006); Scott E. Lemieux and George Lovell, “Legislative Defaults: Interbranch Power Sharing and Abortion Politics,” Polity 42 (2010): 210–43.

  19. Klarman, “Rethinking”; Mark A. Graber, “Federalist or Friends of Adams: The Marshall Court and Party Politics,” Studies in American Political Development 12 (October 1998): 229–66; Lucas A. Powe, Jr., The Warren Court and American Politics (Cambridge: The Belknap Press of Harvard University Press, 2000).

  20. Mark A. Graber, “The Countermajoritarian Difficulty: From Congress to the Courts to Constitutional Order,” Annual Reviews in Law and Social Science 4 (2008): 361.

  21. Mark A. Graber, “Constructing Judicial Review,” Annual Review of Political Science 8 (2005): 446; see also Cornell W. Clayton, “The Supreme Court and Political Regimes: ‘Great Tides’ in Politics and Law,” in New Directions in American Politics, ed. Raymond J. La Raja (Florence, KY: Routledge, 2013), 85–03.

  22. Keck and McMahon’s very recent work stands out. See McMahon, Nixon’s Court; Thomas M. Keck, Judicial Politics in Polarized Times (Chicago: University of Chicago Press, 2014); Thomas M. Keck and Kevin McMahon, “Why Roe Still Stands: Abortion Law, the Supreme Court, and the Republican Regime,” Studies in Law, Politics, & Society (forthcoming).

  23. Graber, “Constructing Judicial Review,” 446.

  24. For example, Graber, “Nonmajoritarian”; McMahon, Reconsidering Roosevelt; Gillman, “Party Politics.”

  25. For example, Graber, “Friends of Adams”; McMahon, Nixon’s Court; Keck, Judicial Politics.

  26. E.E. Schattschneider, Party Government (New York: Holt, Rinehart, and Winston, 1942); Seymour Martin Lipset and Stein Rokkan, Party Systems and Voter Alignments: Cross-National Perspectives (Toronto: Free Press, 1967); James Sundquist, Dynamics of the Party System (Washington, DC: The Brookings Institution, 1983).

  27. David Karol, Party Position Change in American Politics: Coalition Management (New York: Cambridge University Press, 2009); Daniel DiSalvo, Engines of Change: Party Factions in American Politics: 1868–2010 (Oxford: Oxford University Press, 2012).

  28. McMahon, Reconsidering Roosevelt; J. Mitchell Pickerill and Cornell W. Clayton, “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2 (June 2004): 233–48; Mark A. Graber, Dred Scott; Thomas M. Keck, “Party Policy, or Duty: Why Does the Supreme Court Invalidate Statutes?” American Political Science Review 101 (May 2007): 321–38.

  29. Mark Graber, “Regime Politics and the Countermajoritarian Problem,” Balkinization Blog (June 2008), http://balkin.blogspot.com/2008/06/regime-politics-and-countermajoritarian.html, accessed on June 9, 2015.

  30. Schattschneider, Party Government; Lipset and Rokkan, Party Systems; Gary Miller and Norman Schofield, “Activists and Partisan Realignment in the United States,” American Political Science Review 97 (May 2003): 245–60; Norman Schofield and Gary Miller, “Elections and Activist Coalitions in the United States,” American Journal of Political Science 51 (July 2007): 518–31; Gary Miller and Norman Schofield, “The Transformation of the Republican and Democratic Party Coalitions in the U.S.,” Perspectives on Politics 6 (September 2008): 433–50; Karol, Party Position Change.

  31. See McMahon, Reconsidering Roosevelt; Graber, “Constructing Judicial Review”; Howard Gillman, “Party Politics”; Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, NJ: Princeton University Press, 2007); Graber, “The Countermajoritarian Difficulty.”

  32. Daniel Cook and Andrew J. Polsky, “Political Time Reconsidered: Unbuilding and Rebuilding the State under the Reagan Administration,” American Politics Research 33 (July 2005): 577–605; see also Karol, Party Position Change; Andrew J. Polsky, “Partisan Regimes in American Politics,” Polity 44 (January 2012): 51–80.

  33. Nichols and Myers, “Exploiting the Opportunity”: 807; see also Curt Nichols, “The Presidency and the Political Order: In Context,” Polity 43 (October 2011): 513–32; Stephen Skowronek, Presidential Leadership in Political Time: Reprise and Reappraisal (Lawrence: University Press of Kansas, 2011).

  34. Whittington, Political Foundations.

  35. Graber, “Nonmajoritarian”; Clayton, “Supply and Demand”; Lovell, Legislative Deferrals; Graber, Dred Scott; Lemieux and Lovell, “Legislative Defaults.”

  36. Klarman, “Rethinking”; Graber, “Friends of Adams”; Powe, The Warren Court.

  37. Nichols and Myers, “Exploiting the Opportunity,” 807.

  38. Mark A. Graber, “The Problematic Establishment of Judicial Review,” in The Supreme Court in American Politics: New Institutionalist Interpretations, ed. Howard Gillman and Cornell W. Clayton (Lawrence: University Press of Kansas, 1999): 29.

  39. Keck, Judicial Politics, 13. See also Ken I. Kersch, Constructing Civil Liberties: Discontinuities in the Develoment of American Constitutional Law (New York: Cambridge University Press, 2004); Karen Orren and Stephen Skowronek, The Search for American Political Development (New York: Cambridge University Press, 2004), 20.

  40. These predictions, admittedly, are simplified. For example, there are many “moving parts” to a regime (e.g., Congress, the president, parties, etc.). Nevertheless, the predictions are important because they highlight the implications of the core assumptions of the regime politics approach. In other words, instead of tracing all the moving parts of a regime, I instead distill a more parsimonious model to focus specifically on the Court, cross-partisan alliances, and possible counter-majoritarian decisions.

  41. Graber, “Problematic Establishment,” 29; Kersch, Constructing; Orren and Skowronek, Search; Keck, Judicial Politics, 13.

  42. Graber, “Constructing Judicial Review,” 446.

  43. Granted, individual justices might have reasons beyond factional affiliation for their jurisprudential decisions. However, I am examining the effects—not the causes—of judicial behavior. That is, the focus is not on why justices advance the positions on secondary issues that they do. The argument is that justices do take positions on secondary issues—and that this has important effects.

  44. The terms “majority-in-government” and “majority-in-electorate” are derived from Key’s conception of the “party-in-the-government” and “party-in-the-electorate.” V.O. Key, Jr., Politics, Parties, and Pressure Groups (New York: Thomas Y. Crowell Company, 1942).

  45. Friedman, “Academic Obsession,” 349.

  46. Gregory A. Caldeira, “Neither the Purse Nor the Sword: Dynamics of Public Confidence in the Supreme Court,” American Political Science Review 80 (December 1986): 1209–26.

  47. Friedman, “Academic Obsession.”

  48. See Curt Nichols, Dave Bridge, and Adam Carrington, “Court-Curbing via Attempt to Amend the Constitution: An Update of Congressional Attacks on the Supreme Court from 1955–1984,” Justice Systems Journal 35 (2014): 1–13.

  49. Attacks on the Court could be position-taking devices aimed at constituents. See David Mayhew, Congress: The Electoral Connection (New Haven, CT: Yale University Press, 1974). Indeed, this might be an attack’s primary purpose. Nevertheless, if we see attacks combined with other counter-majoritarian indicators, then perhaps they are meant as a signal for other groups, too (e.g., the Court, co-partisans, or the opposition party). See Tom S. Clark, The Limits of Judicial Independence (New York: Cambridge University Press, 2010); Stephen Engel, American Politicians Confront the Courts: Opposition Politics and Changing Responses to Judicial Power (New York: Cambridge University Press, 2011).

  50. Edward G. Carmines and James A. Stimson, Issue Evolution: Race and the Transformation of American Politics (Princeton, NJ: Princeton University Press, 1989); Greg D. Adams, “Abortion: Evidence of an Issue Evolution,” American Journal of Political Science 41 (July 1997): 718–37; Kara Lindaman and Donald P. Haider-Markel, “Issue Evolution, Political Parties, and the Culture Wars,” Political Research Quarterly 55 (March 2002): 91–110.

  51. Edward G. Carmines and James A. Stimson, “On the Structure and Sequence of Issue Evolution,” American Political Science Review 80 (September 1986): 901.

  52. See Keck, Judicial Politics: 4.

  53. See Jeb Barnes, Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations (Stanford, CA: Stanford University Press, 2004); J. Mitchell Pickerill, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (Durham, NC: Duke University Press, 2004).

  54. See Daniel Schlozman, “The Making of Partisan Majorities: Parties, Anchoring Groups, and Electoral Change,” 2011; dissertation accessed at proquest.com; Christopher Baylor, “First to the Party: The Group Origins of the Partisan Transformation on Civil Rights, 1940–1960,” Studies in American Political Development 27 (October 2013): 1–31.

  55. Earl Black and Merle Black, The Rise of Southern Republicans (Cambridge: The Belknap Press of Harvard University Press, 2002).

  56. In 1952, Liberals converted the Democratic platform from a “populist” ideology to a “universalist” ideology. See John Gerring, Party Ideologies in America: 1828–1996 (New York: Cambridge University Press, 1998). After the 1958 “mid-term revolution,” non-Southern Democrats outnumbered Southern Democrats nearly 2-1 in both the House and Senate. Finally, starting in 1952, the liberal plurality within the national convention held an effective veto over the party’s presidential nomination. See Walter Johnson, How We Drafted Adlai Stevenson (New York: Knopf, 1955).

  57. Ultimately, it does not matter who appointed the justices. What matters is that the Court advanced the preferences on the secondary issues that highlighted the fault lines within the Democratic Party. Many of the justices were appointed by Democratic presidents. For instance, FDR strategically sought to place civil rights liberals (e.g., William Douglas, Frank Murphy) on the bench (see McMahon, Reconsidering Roosevelt), while JFK and LBJ also appointed many liberals (e.g., Arthur Goldberg, Abe Fortas, Thurgood Marshall). Yet, it was Republican appointees (e.g., Earl Warren, William Brennan) who surprisingly tipped—and even led—the liberal Court. The combination of liberal Democratic appointees and unexpectedly liberal Republican appointees made the Court a sympathizer of the leading faction in the cases discussed here.

  58. One might argue that these decisions were not counter-majoritarian because they aligned with the broad principles held by dominant forces in the New Deal Democratic regime. See Martin Shapiro, “The Supreme Court: From Warren to Burger,” in The New American Political System, ed. Anthony King and Samuel Hutchinson Beer (Washington DC: American Enterprise Institute, 1978): 179–11. I question this interpretation. Put simply, the leading faction’s approval of the preferences on secondary issues does not grant a policy majoritarian status. Indeed, as will be shown, the combination of white Southerners, socially conservative Catholics, and Republicans seemed to have constituted a majority-in-government and majority-in-the-electorate.

  59. These figures are calculated on the basis of Table 2. I took the rise in voters from 1960 and 1980 and accounted for that multiplier in Southern and Catholic votes in 1980.

  60. For example, see Howard Gillman, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” American Political Science Review 96 (September 2002): 511–24.

  61. While the Brown v. Board addressed secondary issues, the regime politics literature has extensively demonstrated that Brown was hardly counter-majoritarian. See Klarman, “Rethinking”; Friedman, “Academic Obsession"; Powe, Warren Court; Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004); McMahon, Reconsidering Roosevelt.

  62. Briefly, Pennsylvania v. Nelson (1956) ruled against Pennsylvania’s anti-sedition law; Konigsberg v. State Bar (1957) and Schware v. Board of Examiners (1957) held that state bars could not deny applications because of Communist Party affiliation; Cole v. Young (1956) reversed the dismissal of a federal employee based on “sympathetic association” with a communist organization; Slochower v. Board of Education (1956) reversed the dismissal of a professor who refused to answer questions regarding communist affiliations; Service v. Dulles (1957) reversed the discharge of a foreign service officer suspected of being a communist; Jencks v. United States (1957) forced government prosecutors to cooperate in the sharing of evidence in criminal cases; Yates v. United States (1957) made it more difficult for the government to prosecute Communist organization and advocacy; Sweezy v. New Hampshire (1957) narrowed the definition of “subversive persons” to exclude activity remotely and unconsciously connected to subversion; and Watkins v. United States (1957) declared the House Committee on Un-American Activities to have reached beyond the scope of congressional power.

  63. Earl Warren, The Memoirs of Chief Justice Earl Warren (New York: Doubleday, 1977): 6.

  64. Arthur J. Sabin, In Calmer Times: The Supreme Court and Red Monday (Philadelphia: University of Pennsylvania Press, 1999); Jeff Woods, Black Struggle, Red Scare: Segregation and Anti-Communism in the South, 1948–1968 (Baton Rouge: Louisiana State Press, 2004).

  65. James Eastland (D-MS), Congressional Record, 1955: 7119–24.

  66. See Gordon Silverstein and John Hanley, “The Supreme Court and Public Opinion in Times of War and Crisis,” Hastings Law Journal 61 (2010): 1453–501.

  67. National Opinion Research Center, “The Communism, Conformity, and Civil Liberties Study,” 1954.

  68. William Jenner (R-IN), Congressional Record, 1957: 12806; see also, Harold Collier (R-IL), Congressional Record, 1957: 15974; Wint Smith (R-KS), Congressional Record, 1957: 16981.

  69. James Davis (D-GA), Congressional Record, 1957: 9887; see also John Williams (D-MS), Congressional Record, 1957: 4339; Strom Thurmond (D-SC), Congressional Record, 1957: 10333.

  70. Friedman, “Academic Obsession”; Sabin, In Calmer Times; Powe, Warren Court; Woods, Black Struggle.

  71. Strom Thurmond (D-SC), Congressional Record, 1957: 10334.

  72. Walter F. Murphy, Congress and the Court (Chicago: The University of Chicago Press, 1962), 207.

  73. Engel, American Politicians, 299.

  74. Southern Democrats voted 17 to 5 in favor of the first anti-communism measure. The five included: Johnson, fellow Texan Ralph Yarborough (no doubt influenced by LBJ), two Missouri Senators, and Tennessean Estes Kefauver, who harbored presidential aspirations and consistently appealed to Northern Democrats. Interestingly, the 41–40 “win” was not the result LBJ wanted. He had anticipated a 40 to 40 tie, which would have necessitated Vice President Richard Nixon’s tie-breaking vote. LBJ predicted that Nixon would have voted against the court-curbing proposal. Harboring his own presidential aspirations, LBJ hoped to force Nixon (the likely 1960 GOP presidential candidate) into taking a position against the anti-communism measure, which would hurt Nixon’s general election support from Republicans and white Southerners. LBJ’s plans were foiled, though, when Senator Wallace Bennett (R-UT) unexpectedly voted to table the bill. For his part, Nixon moved quickly to avoid the issue (Congressional Record 1958, 18928).

  75. Friedman, “Academic Obsession”; Sabin, In Calmer Times.

  76. Craig Hosmer (D-CA), Congressional Record, 1957: 15955.

  77. See Sabin, In Calmer Times; Powe, Warren Court; Engel, American Politicians.

  78. See Powe, Warren Court. Footnote 61 above describes these cases.

  79. Gerald N. Rosenberg, “Judicial Independence and the Reality of Political Power,” Review of Politics 54 (Summer 1992): 391.

  80. Sabin, In Calmer Times, 196; Mark V. Tushnet, The Warren Court in Historical and Political Perspective (Charlottesville, VA: The University of Virginia Press, 1993), 6.

  81. Clark, Judicial Independence; Engel, American Politicians.

  82. Rosenberg, “Judicial Independence,” 391.

  83. While Prendergast argues that divisions within Catholics began to surface in the 1960s, this does not seem to be the case on school prayer. Surveys by American National Election Studies (ANES) show that in 1964 (the first year the survey asked about prayer) 84 percent of all Catholics—including 85 percent of all non-Southern Catholic Democrats—believed that “schools should be allowed to start [the day] with prayer.” ANES, Electionstudies.org; William B. Prendergast, The Catholic Voter in American Politics: The Passing of the Democratic Monolith (Washington DC: Georgetown University Press, 1999), 150.

  84. Tushnet, Warren Court; Friedman, “Academic Obsession”; Matthew E. K. Hall, The Nature of Supreme Court Power (Cambridge: Cambridge University Press, 2011).

  85. Gallup, “The Gallup Poll,” 1963.

  86. Harris, “Election Survey,” 1966; Gallup, “The Gallup Poll,” 1964.

  87. Even this is somewhat misleading, as James Davis (D-GA)—an ardent opponent of Engel—claimed tongue-in-cheek support because he believed Engel expanded protection of school prayer. Davis said the Court had struck down the precise prayer written into New York law, thereby ruling that “the New York school children were entitled to some choice about what prayers they uttered … Now they are free to say the Lord’s Prayer if they prefer to do so, whereas before the Supreme Court decision they could not do so.” Congressional Record, 1962: 13215.

  88. Basil Whitener (D-NC), Congressional Record, 1962: 12332.

  89. Howard Smith (D-VA), Congressional Record, 1962: 13593; see also Joseph Waggonner (D-LA), Congressional Record, 1962: 11777; Thomas Abernethy (D-MS), Congressional Record, 1962: 11718; Herbert Bonner (D-NC), Congressional Record, 1962: 6378; William Hull (D-MO), Congressional Record, 1962: 12226.

  90. Robert Giamio (D-CT), Congressional Record, 1962, 12624; see also Frank Becker (D-NJ), Congressional Record, 1962: 11719; Francis Walter (D-PA), Congressional Record, 1962: 11719; Leo O’Brien (D-NY), Congressional Record: 11761; Thomas Johnson (D-MD), Congressional Record, 1962: 11968.

  91. Glenn Cunningham (R-NE), Congressional Record, 1962: 12128.

  92. George Goodling (R-PA), Congressional Record, 1962: 11910; see also William McCulloch (R-OH), Congressional Record, 1962: 11755; William Bray (R-IN), Congressional Record, 1962: 11780; Walter McVey (R-KS), Congressional Record, 1962: 13455.

  93. Robert Sikes (D-FL), Congressional Record, 1962: 11775; see also L. Mendel Rivers (D-SC), Congressional Record, 1962: 11732; Abernethy (D-MS), Congressional Record, 1962: 11718; Waggonner (D-LA), Congressional Record, 1962: 11777; Whitener (D-NC), Congressional Record 1962: 12332; Hull (D-MO), Congressional Record, 1962: 12226.

  94. Alberta Morel Lachicotte, Rebel Senator: Strom Thurmond of South Carolina (New York: Devin-Adair Co., 1966). Howard Callaway (GA) and Albert Watson (SC) were the other Members of Congress to switch. Notably, in an age of committee seniority, the Democratic Caucus had stripped Watson of his committee seniority for supporting Barry Goldwater’s 1964 presidential campaign.

  95. Republican Party Platform of 1964: http://www.presidency.ucsb.edu, accessed on June 9, 2015.

  96. Daniel K. Williams, God’s Own Party: The Making of the Christian Right (Oxford: Oxford University Press, 2010.

  97. “Dividing the Democrats: Memorandum to the Attorney General H.R. Haldeman,” October 5, 1971. Granted, this strategy could include other issues, too, such as busing and abortion (see below).

  98. Bruce J. Dierenfield, The Battle over School Prayer: How Engel v. Vitale Changed America (Lawrence: University Press of Kansas, 2007), 161.

  99. Republican Platform of 1968. http://Americanpresidency.org, accessed on June 9, 2015.

  100. Lawrence McAndrews, “Unanswered Prayers: Church, State, and School in the Nixon Era,” US Catholic Historian 13 (Fall 1995): 86–87.

  101. Emphasis in original. Kenneth M. Dolbeare and Phillip E. Hammond, The School Prayer Decisions from Court Policy to Local Practice (Chicago: University of Chicago Press, 1971), 42.

  102. Dierenfield, School Prayer, 160.

  103. These figures are drawn from 1964–1968 (N=119). ANES, Electionstudies.org

  104. Dierenfield, School Prayer, 145.

  105. Ibid., 148.

  106. Dolbeare and Hammond, School Prayer, 42.

  107. Gallup, “The Gallup Poll,” 1971.

  108. See National Opinion Research Center, “General Social Survey,” 1972; Time, Busing Survey, 1972; Harris, Election Survey, 1972.

  109. Jonathan Kelley, “The Politics of School Busing,” NORC General Social Survey, 1972.

  110. McMahon, Nixon’s Court, 212–50

  111. ANES, http://www.electionstudies.org, accessed on June 9, 2015.

  112. Catholics’ collective opinion on race in the early 1970s is virtually indistinguishable from the rest of the nation. For example, in 1972, the ANES asked respondents to rate their feelings toward blacks on a 0 (negative) to 100 (positive) “thermometer.” The non-Catholic mean was 71.6. The Catholic mean was 71.7. The Northern suburban Catholic mean was 73.2. ANES, http://www.electionstudies.org, accessed on June 9, 2015.

  113. D. Sunshine Hillygus and Todd G. Shields, The Persuadable Voter: Wedge Issues in Presidential Campaigns (Princeton, NJ: Princeton University Press, 2008), 131.

  114. Patrick Buchanan, “Watergate Hearings,” 1973: 3903. https://archive.org/stream/presidentialcamp10unit#page/n1/mode/2up, accessed June 9, 2015.

  115. O. Clark Fisher (D-TX), Congressional Record, 1971: 47768; see also Robert Casey (D-TX), Congressional Record, 1971: 13340; Robert Sikes (D-FL), Congressional Record, 1971: 38493.

  116. William Broomfield (D-MI), Congressional Record, 1972: 630; see also Joseph Gaydos (D-PA), Congressional Record, 1971: 35481; Roman Pucinski (D-IL), Congressional Record, 1971: 38484.

  117. Wilmer Mizell (R-NC), Congressional Record, 1971: 11012; Marvin Esch (R-MI), Congressional Record, 1971: 39311; Robert Griffin (R-MI), Congressional Record, 1971: 35481.

  118. We might think busing attacks lessened after 1973, when Milliken v. Bradley ruled that mandatory busing could take place only within the limits of a single school district, thereby insulating suburbs from integrating with inner cities. However, 128 of 227 legislative attacks came after Milliken. While the decision might have assuaged traditionalist concerns over busing, members of Congress still attacked the Court.

  119. John Rarick (D-LA), Congressional Record, 1971: 11014; see also Thomas Abernethy (D-MS), Congressional Record, 1971: 11152; Joseph Waggonner (D-LA), Congressional Record, 1971: 11094.

  120. Roger Chapman, Culture Wars: An Encyclopedia of Issues, Viewpoints, and Voices (Armonk, NY: M.E. Sharpe, 2010), 327.

  121. Jesse Helms, Here’s Where I Stand: A Memoir (New York: Random House, 2005), 63.

  122. “Interview with Frank Rouse,” Southern Oral History Collection (University of North Carolina at Chapel Hill), http://sohp.org, accessed on June 9, 2015.

  123. Democratic Platform of 1972, http://presidency.ucsb.edu, accessed on June 9, 2015. See also: George McGovern, Congressional Record, 1972: 5962; Bruce Miroff, The Liberals’ Moment: The McGovern Insurgency and the Identity Crisis of the Democratic Party (Lawrence: University Press of Kansas, 2007); McMahon, Nixon’s Court, 231–33.

  124. Republican Platform of 1972, http://presidency.ucsb.edu, accessed on June 9, 2015.

  125. Republican Platform of 1976, http://presidency.ucsb.edu, accessed on June 9, 2015.

  126. Kevin Phillips, “School Busing and Public Opinion,” The Bryan Times, March 4, 1972.

  127. McMahon, Nixon’s Court, 75.

  128. For example, Richard Nixon, “Statement about the Busing of Schoolchildren,” August 3, 1971; Richard Nixon, “Remarks and Question-and-Answer Session,” April 30, 1972; Richard Nixon, “The President’s News Conference,” October 5, 1972. See http://presidency.ucsb.edu, accessed on June 9 2015.

  129. Hillygus and Shields, Persuadable Voter, 131.

  130. Donald Segretti, “Watergate Hearings,” 1973: 3982, 4149. https://archive.org/stream/presidentialcamp10unit#page/n1/mode/2up, accessed June 9, 2015.

  131. On the Nixon tapes can be heard the president’s suggestion to “have some civil rights people praise him [Muskie] for his defense of busing. I don’t know if you’ve got any people to do that or not but I think that would be very clever.” McMahon, Nixon’s Court, 107.

  132. Patrick Buchanan, “Memorandum for the President: The Muskie Watch,” March 24, 1971.

  133. “Dividing the Democrats.”

  134. See Lino A. Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Ithaca, NY: Cornell University Press, 1976); Robert A. Pratt, The Color of Their Skin: Education and Race in Richmond, Virginia, 1954–89 (Charlottesville: University Press of Virgina, 1992); Tracy Elaine K’Meyer, From Brown to Meredith: The Long Struggle for School Desegregation in Louisville, Kentucky, 1954–2007 (Chapel Hill: University of North Carolina Press, 2013).

  135. A white mob nearly beat André Yvon Jean-Louis, a black man, to death. See Jon Hillson, The Battle of Boston: Busing and the Struggle for School Desegregation (New York: Pathfinder Press, 1997), 15–18.

  136. George R. Metcalf, From Little Rock to Boston: The History of School Desegregation (Westport, CT: Greenwood Press, 1983), 162. Metcalf tells the story of James G. O’Hara (D-MI), who “up to then had been one of the most outspoken liberal Democrats in the House … Then the clamor from Michigan whites against integration became frightening. Panic surfaced most noticeably in the overwhelmingly white suburbs that O’Hara represented … If O’Hara wanted to retain his seat, he had to forswear his integrity.”

  137. Nixon cleverly wanted the bill itself to be postponed in 1971 so that he could continue to campaign on the problem of busing. Miroff, McGovern, 237; McMahon, Nixon’s Court, 232.

  138. The House added both amendments with cross-partisan majorities. Postponement passed 235 to 125. Republicans voted 129 to 17 in favor. Of the 106 Democrats who voted in favor, 57 were from the South and 49 from outside the South. Non-funding passed 234 to 124. Republicans voted 125 to 20 in favor. Of the 109 Democrats who voted in favor, 66 were from the South and 43 from outside the South.

  139. Edward Keynes and Randall K. Miller, The Court vs. Congress: Prayer, Busing, and Abortion (Durham, NC: Duke University Press, 1989).

  140. By the time of the Roe decision, Republicans had actually appointed a majority of the justices. In fact, Republican presidents had appointed five of the seven justices who were in the majority, including three appointed by Nixon. McMahon attributes the voting patterns to “Nixon’s lack of ideological interest in the matter.” However, this does not mean that Nixon, or other GOP strategists, were politically uninterested. McMahon, Nixon’s Court, 177. Indeed, as will be shown, Nixon staffers saw abortion as an issue which appealed to wavering voters. Moreover, in 1976, after meeting with Catholic leaders, Gerald Ford assented to a pro-life constitutional amendment plank in the GOP platform. Yet, scholars of the development of Catholic voting point to Reagan’s 1980 campaign as the moment in which the GOP seized the pro-life monopoly. Prendergast, Catholic Voter; George J. Marlin, The American Catholic Voter: 200 Years of Political Impact (South Bend, IN: St. Augustine’s Press, 2004): 288. That said, Abramowitz says pro-choicers have since seized the abortion advantage.

  141. Graber, “Nonmajoritarian”; Lemieux and Lovell, “Legislative Defaults.” Both articles expertly contend that a majority of policy-makers willfully passed the buck on the abortion issue. I do not dispute this argument. Indeed, both articles identify members of Congress explicitly saying as much. I only add that while a majority (made up of all Democrats) punted the issue, a different majority (made up of Southern Democrats, Catholic Democrats, and Republicans) disagreed with the outcome of Roe. Even so, as these articles show, after Roe, Southern and Catholic Democrats still wanted the Court to resolve the issue. I agree, and add that they just preferred a different result.

  142. In 1973, Gallup found that 68 percent disapproved of elective abortions. In the same year, NORC found that 51 percent disapproved. In analyzing the polls’ question wording and order, Judith Blake concludes that both had introduced biases, and that disapproval was probably around 60 percent. While this points to a possible pro-life majority, I am making the more qualified claim of an anti-Roe majority. Judith Blake, “The Supreme Court’s Abortion Decisions and Public Opinion in the United States,” Population and Development Review 3 (March 1977): 50.

  143. Gallup, “The Gallup Poll,” 1972.

  144. An August 1972 poll found that 46 percent opposed, and 42 percent favored first trimester abortions; in January 1973, 45 percent were opposed, and 46 percent in favor. Harris, “Harris Polls,” 1972. Gallup, “The Gallup Poll,” 1973.

  145. Blake, “Abortion,” 52.

  146. Gallup, “The Gallup Poll,” 1973.

  147. G. William Whitehurst (R-VA), Congressional Record, 1973: 7569; William Buckley (C-NY), Congressional Record, 1973: 17544; Earle Landgrebe (R-IN), Congressional Record, 1973: 34988.

  148. James Allen (D-AL), Congressional Record, 1973: 1862; George O’Brien (R-IL), Congressional Record, 1973: 10650; Robin Beard, Jr. (R-TN), Congressional Record, 1973: 37113.

  149. Lawrence Hogan (R-MD), Congressional Record, 1973: 16581.

  150. Richard Ichord (D-MO), Congressional Record, 1973: 30144.

  151. “Congressman Leaves Democratic Party,” Lodi News-Sentinel January 24, 1975: 9. Granted, abortion may have only played a subsidiary role in Jarman’s defection. The overarching cause was the dominance of the liberal faction within the Democratic Party. As Jarman said, “I have seen the caucus taken over by some of the same elements which took the party over in 1972.” In addition, he noted, “The Republican Party—in the Congress and in the White House—comes closer to the kind of policies and the kind of leadership that the people of my district want. I am not turning my back on the beliefs and principles of a lifetime. I am taking them with me to the Republican Party.” Previous to his party switch, Jarman had been known to avoid voting against the Democratic Party by exiting the House chamber and retreating to the Members’ gym behind a door marked “Members Only.” For example, he recorded “no vote” on postponement and defunding of busing. Daily Oklahoman. 24 January 1975. Allan Cromley Collection. Box 12, Folder 3. Carl Albert Center Archives, University of Oklahoma; John Jarman, “Press Release,” 23 January 1975. Allan Cromley Collection. William Allen Black, “Just Whose Pussycat is He? John Jarman, Inc.” The Oklahoma Observer. 5 (June 10, 1974): 1. James R. Jones Collection, Box 33, Folder 9.

  152. “Dividing the Democrats.”

  153. Linda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Rulings (New York: Kaplan Publishing, 2010).

  154. Buchanan, “Muskie Watch.” Buchanan specifically targeted the type of Catholics “who join the K. of C. [Knights of Columbus] … who fight against abortion in their legislatures … who work on assembly lines … who have headed to the suburbs … They are where are our votes are.” McMahon, Nixon’s Court, 176.

  155. Kevin P. Phillips, “How Nixon Will Win,” New York Times Magazine, August 6, 1972: 8.

  156. Robert Mason, Richard Nixon and the Quest for a New Majority (Chapel Hill, NC: University of North Carolina Press, 2004): 155.

  157. Blake, “Abortion,” 61.

  158. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991).

  159. The Hyde Amendment was introduced in the House, where it passed 207 to167 (55 to 45 percent), with 94 of 128 Republicans (73 percent) and 113 of 246 Democrats (46 percent) voting in favor. Of the 113 Democratic “ayes,” only 49 came from the South, indicating that a majority probably came from heavily Catholic districts. Indeed, 23 of the 64 non-Southern Democratic “ayes” came from the five most heavily Catholic populated states (New Jersey, Connecticut, Rhode Island, Massachusetts, and New York).

  160. Clayton and Pickerill seem to suggest that strengthening federalism was the Republican coalition’s primary goal. J. Mitchell Pickerill, “Leveraging Federalism: The Real Meaning of the Rehnquist Court’s Federalism Jurisprudence for States,” Albany Law Review 66 (Fall 2003): 823–33; Cornell W. Clayton and J. Mitchell Pickerill, “Guess What Happened on the Way to Revolution? Precursors to the Supreme Court’s Federalism Revolution,” Publius 34 (Summer 2004): 85–114; Pickerill and Clayton, “Dynamics of Federalism.”

  161. The 1976 platform ideologically tied abortion to “neighborhood schools,” “estate tax changes,” and “welfare policy.”

  162. Robin Beard (R-TN), Congressional Record, 1973: 37113; Robert Hanrahan (R-IL), Congressional Record, 1973: 24008.

  163. Republican Platform of 1980. http://Americanpresidency.org, accessed on June 9, 2015.

  164. Ronald Reagan, “First Inaugural Address,” http://presidency.ucsb.edu, accessed on June 9, 2015.

  165. Reagan actually “ran ahead” of many Southern Democrats in the 1980 election. In some of the most important early legislative votes (e.g., the 1981 Budget Battle and tax cuts), these Southern Democrats voted for Reagan’s preferred positions. See James P. Pfiffner, “The Reagan Budget Juggernaut,” in The President and Economic Policy, ed. James P. Pffifner (Philadelphia: ISHI Publications, 1986), 108–35.

  166. See Graber, “Nonmajoritarian”; Gillman, “How Political Parties”; Whittington, “Interpose.”

  167. Friedman, “Academic Obsession.” 196.

  168. Pffifner, “Reagan Budget.” In addition, Black and Black argue that Southerners also continued to vote for incumbent Democratic members of Congress because those members’ seniority gave them important committee chairmanships. After senior Democratic members of Congress retired, though, Southern voters turned to Republican candidates for Congress. Black and Black, Southern Republicans.

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Special thanks to Pat Flavin, Curt Nichols, David Nichols, Dan Walters, and the staff of the Carl Albert Center at the University of Oklahoma.

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Bridge, D. The Supreme Court, Factions, and the Counter-Majoritarian Difficulty. Polity 47, 420–460 (2015). https://doi.org/10.1057/pol.2015.21

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