7 The Federal Courts
I. Courts and Judicial Power↑
If we want to understand the distinctive features of courts as political institutions, then we must understand the differences between judicial power, legislative power, and executive power. If we want to understand American courts, then we must to also consider how the USA’s political institutions affect the character of judicial power. While the unique features of American courts are shaped by the institutional features of American national government, the role of courts in American politics has changed over time because of changes in ideology, particularly the rise of new forms of progressivism in the post-New Deal era. Institutions and ideas combine to make courts particularly powerful in the American political system. Whether courts are always effective at wielding this authority is far from clear. When judges address controversial questions of constitutional law, particularly questions related to civil rights and civil liberties, the resulting decisions are often political in character. This is probably unavoidable. As we will see, the key political problem with judicial power is that courts must go “beyond the law” to perform their role—they must rely on principles that are not simply part of statutory law or the constitutional text, principles that, according to many political scientists, are indistinguishable from “political preferences.” 1 This is not to say that courts are always motivated by political considerations in every instance. It is to say that, while judicial power is distinct from legislative and executive power, it is still a political form of power, at least in some ways.
We begin with the most basic question: what is a court? The political scientist Martin Shapiro has argued that the basic structure of courts can be seen in almost every society.2 Shapiro argues that in almost every society that has ever existed, there is usually some way to resolve disputes between two individuals through appeals to a third individual; he calls this “triadic dispute resolution,” and it is the origin of judicial forms of power. Of course, the invention “triadic dispute resolution” occurred in pre-history, whenever two individuals of more or less equal strength decided that it would make sense to resolve their dispute without clubs and spears: “Hey, instead of dueling over this dead mastodon, let’s ask the alpha male, or the shaman, or the wise woman, to resolve our dispute: is the mastodon yours if you are the first one to hit it, or if you are the one to strike the killing blow?” And thus the concept of dispute resolution, perhaps even the concept of the law and legal precedent, was born. Something like the case of the disputed mastodon must have happened, again and again, until primitive forms of law and legal custom emerged.
Thinking about courts as “triads”– that is, the appeal to a third party to resolve a dispute between two parties– is very helpful in thinking about some of the basi