The Journal of Politics


Parties at the Bar: Equal Protection, Freedom of Association, and the Rights of Political Organizations

Clifton McCleskeya1

a1 University of Virginia

The proper role of the judiciary is one of the great, enduring issues of American politics. This question agitated the first generation to govern under the Constitution, with the sharpest criticism coming from those of the Jeffersonian–Madisonian faith. The Jacksonians, too, had problems with judges, as did antislavery forces on the eve of the Civil War. Later, the visceral attacks by populists on the judiciary helped to pave the way for the more intellectually respectable assaults of the Progressives. More recently, scholars and activists have renewed this ancient battle, and on familiar grounds: how to reconcile democratic principles with the policymaking role of appointed judges whose terms of office are lifelong? That judges, in exercising the power of judicial review, are making public policy on a grand scale is obvious; one cannot read a good newspaper without daily encountering examples of judges functioning as legislators and, increasingly, as executives and administrators as well. It is much too late to doubt the constitutionality of that power of judicial review, but the questions of its suitability for public policymaking and its compatibility with democratic principles cannot be so easily dismissed.