The common thread among these diverse patterns is an ongoing dialogue among roughly coequal actors in various branches and levels of government. Those interactions are driven by processes of conflict and persuasion distinctive to specific policy arenas as well as by the ideas, institutional realities, and interests of specific policy communities. Although complex, this fresh examination does not render the policymaking process incomprehensible; rather, it encourages scholars to look beyond the narrow study of individual institutions and reach across disciplinary boundaries to discover recurring patterns of interbranch dialogue that define (and refine) contemporary American policy.
Making Policy, Making Law provides a combination of contemporary policy analysis, an interbranch perspective, and diverse methodological approaches that speak to a surprisingly overlooked gap in the literature dealing with the role of the courts in the American policymaking process. It will undoubtedly have significant impact on scholarship about national lawmaking, national politics, and constitutional law. For scholars and students in government and law—as well as for concerned citizenry—this book unravels the complicated interplay of governmental agencies and provides a heretofore in-depth look at how the U.S. government functions in reality.
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Overall, the Supreme Court has become increasingly assertive in reviewing congressional power to regulate in areas that fall within the historical province of the states. This work engenders an appreciation for how constitutional power, rights, and liberties are not a constant over time but works in progress that are subject to the ebb and flow of judicial philosophy. Written for a general audience and particularly accessible for non-law school students and non-lawyers, fact and summary boxes provide quick insight and understanding of cases. Entries include Craig v. Boren (1976), Illinois v. Gates (1983), Immigration and Naturalization Service v. Chadha (1983), Reno v. American Civil Liberties Union (1992), United States v. Virginia (1996), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Hamdi v. Rumsfeld (2004), and many others. In addition, a glossary defines key terms.
This volume follows the push for equal treatment regardless of age, gender, disabilities, economic status, or sexual orientation. It focuses on legislation such as the Americans with Disabilities Act, and political initiatives and movements such as The Great Society, the ERA, and the War on Poverty. Here are American's interpretations of equal rights, then and now.
The Court's reliance on avoidance has been inconsistent and at times politically motivated. For example, liberal New Deal Justices, responding to the activism of a conservative Court, promoted deference to Congress and the presidency to protect the Court from political pressure. Likewise, as the Warren Court recognized new constitutional rights, conservative judges and critics praised avoidance as a foundational rule of judicial restraint. And as conservative Justices have constituted the majority on the Court in recent years, many liberals and moderates have urged avoidance, for fear of disagreeable verdicts.
By sharing the stories of litigants who struggled unsuccessfully to raise before the Supreme Court constitutional matters of the utmost importance from the 1970s-1990s, Playing it Safe argues that judges who fail to exercise their power in hard cases in effect abdicate their constitutional responsibility when it is needed most, and in so doing betray their commitment to neutrality. Lisa Kloppenberg demonstrates how the Court often avoids socially sensitive cases, such as those involving racial and ethnic discrimination, gender inequalities, abortion restrictions, sexual orientation discrimination, and environmental abuses. In the process, the Court ducks its responsibility to check the more politically responsive branches of government when "majority rule" pushes the boundaries of constitutional law. The Court has not used these malleable doctrines evenhandedly: it has actively shielded states from liability and national oversight, and aggressively expanded standing requirements to limit the role of federal courts.
Choices is a thought-provoking, yet nontechnical work that is an ideal supplement for judicial process and public law courses. In addition to offering a unique and sustained theoretical account, the authors tell a fascinating story of how the Court works. Data culled from the Court's public records and from the private papers of Justices Brennan, Douglas, Marshall, and Powell provide empirical evidence to support the central argument, while numerous examples from the justices' papers animate the work.