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This chapter addresses commentary about constitutional law and politics in this current era of a conservative domination of the judiciary.¹ Its primary concern is the different ways in which a working majority on the Court and its judiciary of appointees by Presidents Reagan, George H. W. Bush, and George W. Bush might be conservative,² and the different ways in which domination might take place.³ The frame for the chapter is what I call an “indifference thesis” for analyzing constitutional law and politics. Stated boldly, the thesis is that there should be a commentary distinguished by an interpretive attitude that distrusts, and intentionally resists, analysis based on preconceived notions about the strengths and weaknesses of any constitutional law and politics, be it conservative or left-liberal.⁴ Perhaps, to many readers, an indifference thesis for commentary appears methodologically odd, if not politically perverse. Therefore, the first order of business is to try to make the thesis less odd and perverse by explaining its provenance and attributes.⁵

From one angle, abortion law appears to confirm the regime politics account of the Supreme Court; after all, the Reagan/Bush coalition succeeded in significantly curtailing the constitutional protection of abortion rights. From another angle, however, it is puzzling that the Reagan/Bush Court repeatedly refused to overturn Roe v. Wade. We argue that time and again electoral considerations led Republican elites to back away from a forceful assertion of their agenda for constitutional change. As a result, the justices generally acted within the range of possibilities acceptable to the governing regime but still typically had multiple doctrinal options from which to choose.

This chapter examines the role that Citizens United v. FEC (2010) has played in shaping the current system of election spending in the United States. In Citizens United, the Court determined that individual rights to speech and expression can flow into the corporate entities they join. This chapter argues that the Court’s holding serves to redirect the focus of accountability away from those who seek to sway election outcomes through massive election spending and toward any efforts by government to regulate that type of spending. The practical result has been to allow for the creation of new organizations that can take in unlimited amounts of money while also effectively hiding the source of funds from disclosure. By muddying the waters of disclosure, these new entities – Super PACs and dark money organizations – lower the ability of citizens to maintain accountability over the electoral system. Finally, this chapter examines ways to encourage greater disclosure and accountability in government after Citizens United.

Under the doctrine of judicial review established by Marbury v. Madison (1803) and the Administrative Procedure Act (APA), courts retain the power and authority to review legislative and executive actions and rule on their constitutionality or legality. Courts may also review actions of judges and lower court decisions. This is an important and necessary action to maintain the checks and balances and separation of powers in the United States (U.S.) political system. It is also critical for providing legal oversight and accountability. This chapter will first look at judicial review historically including relevant statutes and cases, actions by the executive branch, and efforts by Congress.

Additionally, the chapter will examine the relationship between judicial review and public policy. Through laws passed by Congress or regulations enacted by federal agencies, these branches of government draft policies with the expectation the judicial branch will enforce them. The courts, however, are to uphold the Constitution first and foremost, and rule on the constitutionality of the laws and regulations. Judicial opinions can have the effect of creating policy, which is a different purpose than the Founding Fathers intended. After reviewing the court system, the chapter will examine several issue areas where the court has been shaped by and in turn influenced public policy.

Legalists and social scientists have not been able to explain the expansion of gay rights in a conservative age because they refuse to respect the special qualities of judicial decision making. These qualities require the Supreme Court to look simultaneously at the past, present, and future, and, most importantly, to determine questions of individual rights through a consideration of how citizens are to live under a continuing rights regime. Unless scholars understand how and why Supreme Court decision making differs from that of more directly politically accountable institutions we can expect no greater success in explaining or predicting individual rights in the future.

The Bureau of Economics in the Federal Trade Commission has a three-part role in the Agency and the strength of its functions changed over time depending on the preferences and ideology of the FTC’s leaders, developments in the field of economics, and the tenor of the times. The over-riding current role is to provide well considered, unbiased economic advice regarding antitrust and consumer protection law enforcement cases to the legal staff and the Commission. The second role, which long ago was primary, is to provide reports on investigations of various industries to the public and public officials. This role was more recently called research or “policy R&D”. A third role is to advocate for competition and markets both domestically and internationally. As a practical matter, the provision of economic advice to the FTC and to the legal staff has required that the economists wear “two hats,” helping the legal staff investigate cases and provide evidence to support law enforcement cases while also providing advice to the legal bureaus and to the Commission on which cases to pursue (thus providing “a second set of eyes” to evaluate cases). There is sometimes a tension in those functions because building a case is not the same as evaluating a case. Economists and the Bureau of Economics have provided such services to the FTC for over 100 years proving that a sub-organization can survive while playing roles that sometimes conflict. Such a life is not, however, always easy or fun.

The premise that the U.S. Supreme Court never veers too far off from the dominant national political coalition (Dahl, 1957) has become widely accepted among social scientists today. To fulfill that promise, however, the confirmation process for justices must serve as a plebiscite through which the public can ratify or reject future justices based on their views. Unfortunately, modern confirmation hearings have become an exercise in obfuscation, providing little meaningful dialogue on important issues. Because conservative Republican presidents have made the lion's share of appointments in recent times, social conservatives have most often benefited from a process that has severed the link between Supreme Court nominees and the polity they must serve.