¹ See, for example, Levy, Leonard, ed., Judicial Review and the Supreme Court: Selected Essays (New York: Harper & Row, 1967)Google Scholar; Bickel, Alexander, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), pp. 34–110 Google Scholar.

² See, for example, Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review, 73 (11, 1959), 1–35 CrossRefGoogle Scholar; Hand, Learned, The Bill of Rights (New York: Atheneum, 1965)Google Scholar. See generally Bickel, pp. 34–65.

³ See, for example, Black, Hugo, A Constitutional Faith (New York: Knopf, 1968)Google Scholar; Frantz, Laurent B., “Is the First Amendment Law? A Reply to Professor Mendelson,” California Law Review, 51 (10, 1963), 729–754 CrossRefGoogle Scholar. See generally Bickel, pp. 73–98.

⁴ Dahl, Robert, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, 6 (Fall, 1957), 279–295 Google Scholar.

After the final draft of this manuscript was virtually completed, an additional commentary bearing on its thesis became available. Adamany, David, “Legitimacy, Realigning Elections, and the Supreme Court,” Wisconsin Law Review (09, 1973), pp. 790–846 Google Scholar. Professor Adamany's article is a thoroughgoing, conscientious—if ultimately wrong-headed—critique of Dahl's work on the Court, as well as that of professors Charles Black and Alexander Bickel.

⁵ Dahl, p. 293.

⁶ Dahl, pp. 293–295.

⁷ Although for purposes of comparability with Dahl I have chosen to equate a “law-making majority” with a “popular majority,” this point is not critical to the argument. The coalition dominant within the American political process at any given period may be dominant because of its numbers, or because of its wealth, or because of its monopolization of the media or the instruments of force, or for some other reason. The argument here is that the Court will reflect the values of this dominant coalition. The reasons why that coalition is politcally dominant are irrelevant to the hypothesis. Thus, the argument is equally applicable whether one employs a “pluralist” or an “elitist” concept of American politics. See Dahl, Robert, Pluralist Democracy in the United States: Conflict and Consent (Chicago: Rand Mc-Nally, 1967)Google Scholar. But see Connolly, William, ed., The Bias of Pluralism (New York: Atherton, 1969)Google Scholar; Bachrach, Peter, The Theory of Democratic Elitism: A Critique (Boston: Little, Brown, and Co., 1967)Google Scholar.

⁸ Dahl, , “Decision-Making,” pp. 283–284 Google Scholar.

⁹ Dahl, , “Decision-Making,” p. 284 Google Scholar. See also note 7. While it may never be possible rigorously and definitively to resolve the question of whether a legislature really represents a “majority,” especially given the evanescence of majorities and the difficulties involved in defining “representation,” such evidence as we have suggests that Congress is not markedly out of line with its constituents. See, for example, Miller, Warren and Stokes, Donald, “Constituency Influence in Congress,” American Political Science Review, 57 (03, 1963), 45–56 CrossRefGoogle Scholar.

¹⁰ See Key, V. O., The Responsible Electorate (Cambridge, Mass.: Belknap Press, 1966)CrossRefGoogle Scholar. See also Boyd, Richard, “Popular Control of Public Policy: A Normal Vote Analysis of the 1968 Election,” American Political Science Review, 66 (06, 1972), 429–149CrossRefGoogle Scholar.

¹¹ Pomper, Gerald, “From Confusion to Clarity: Issues and American Voters, 1956–1968,” American Political Science Review, 66 (06, 1972), 415–428 CrossRefGoogle Scholar. But see Burnham, Walter Dean, Critical Elections and the Mainsprings of American Politics (New York: Norton, 1970)Google Scholar.

¹² RePass, David, “Issue Salience and Party Choice,” American Political Science Review, 65 (06, 1971), 389–400 CrossRefGoogle Scholar. But see Polsby, Nelson and Wildavsky, Aaron, Presidential Elections: Strategies of American Electoral Politics, 2nd edition (New York: Scribner, 1971), pp. 293–302 Google Scholar.

¹³ But see Andrews, William, “American Voting Participation,” Western Political Quarterly, 19 (12, 1966), 639–652 CrossRefGoogle Scholar.

¹⁴ Burnham, Walter Dean, “The Changing Shape of the American Political Universe,” American Political Science Review, 59 (03, 1965), 7–28 CrossRefGoogle Scholar.

¹⁵ The existence of the institution of federalism in America introduces certain problems for this analysis as indeed it does for a great many other analyses of American politics. I have chosen to limit the analysis to cases involving federal statutes on the grounds that it is logically impossible to conclude anything about the relationship between the Supreme Court and “majority” rule on the basis of cases involving state statutes.

¹⁶ But see note 67. The limited nature of the data will permit of only very modest conclusions.

¹⁷ Campbell, Angus, Converse, Philip E., Miller, Warren E., and Stokes, Donald E., Elections and the Political Order (New York: Wiley, 1966)Google Scholar.

¹⁸ Campbell et al., pp. 63–77. The seminal work on cyclical electoral patterns was, of course, Key, V. O., “A Theory of Critical Elections,” Journal of Politics, 17 (02, 1955), 3–18 CrossRefGoogle Scholar. For a most sophisticated attempt to synthesize the work on political party systems, explaining election cycles in general theoretical terms, see Jahnige, Thomas P., “Critical Elections and Social Change: Towards a Dynamic Explanation of National Party Competition in the United States,” Polity, 3 (06, 1971), 465–500 CrossRefGoogle Scholar.

It bears emphasis that, given the still very crude state of the art, the Survey Research Center's classification scheme is applicable only to presidential elections. If and when it can be refined and extended to other elections, e.g., congressional; it will much further advance the study of the relationship between social change and institutional response.

¹⁹ See also Pomper, Gerald, “Classification of Presidential Elections,” Journal of Politics, 29 (08, 1967), 535–566 CrossRefGoogle Scholar, distinguishing between realigning and converting elections depending upon whether the dominant party of the previous era continues its dominant status.

²⁰ See Sundquist, James L., “Whither the American Party System?”, Political Science Quarterly, 88 (12, 1973), 559–581 CrossRefGoogle Scholar.

²¹ See Silva, Ruth, Rum, Religion, and Votes: 1928 Re-Examined (University Park: Pennsylvania State University Press, 1962)Google Scholar; Eldersveld, Samuel, “The Influence of Metropolitan Party Pluralities in Presidential Elections since 1920: A Study of Twelve Key Cities,” American Political Science Review, 43 (12, 1949), 1189–1206 CrossRefGoogle Scholar.

²² Depending upon whose count one uses, there have been three, four, or six. Campbell, Compare et al., Elections and the Political Order with Chambers, William Nisbet and Burnham, Walter Dean, eds., The American Party Systems: States of Political Development (New York: Oxford, 1967)Google Scholar; and Sundquist, James L., Dynamics of the Party System: Alignment and Realignment of Political Parties in the United States (Washington, D.C.: Brookings, 1973)Google Scholar; and Sellers, Charles, “The Equilibrium Cycle in Two-Party Politics,” Public Opinion Quarterly, 29 (Spring, 1965), 16–37 CrossRefGoogle Scholar.

²³ Chambers and Burnham, American Party Systems; see also Sundquist, Dynamics of the Party System. But see Price, Douglas, “‘Critical Elections’ and Party History: A Critical View,” Polity, 4 (12, 1971), 236–242 CrossRefGoogle Scholar.

²⁴ The following brief summary of the findings reported in American Party Systems relies heavily upon Professor Burnham's concluding essay in that volume. For a more extensive treatment, the reader is urged to consult Burnham, , “Party Systems and the Political Process,” in American Party Systems, pp. 277–307 Google Scholar. See also Schlesinger, Arthur Jr., ed., The Coming to Power: Critical Presidential Elections in American History (New York: Chelsea House, 1971)Google Scholar. The general patterns identified by Chambers and Burnham are essentially the same as those advanced by Jahnige, , “Critical Elections and Social Change,” p. 468 Google Scholar.

²⁵ See Goodman, Paul, “The First American Party System,” in American Party Systems, pp. 56–89 Google Scholar. See also Charles, Joseph, The Origins of the American Party System (New York: Harper & Row, 1961)Google Scholar; Chambers, William Nisbet, Political Parties in a New Nation: The American Experience, 1776–1809 (New York: Oxford, 1963)Google Scholar.

²⁶ See Levy, Leonard, Jefferson and Civil Liberties: The Darker Side (Cambridge, Mass.: Harvard University Press, 1963)Google Scholar; Berns, Walter, “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal,” The Supreme Court Review (1970), pp. 109–160 Google Scholar.

²⁷ See McCormick, Richard, “Political Development and the Second Party System,” in Chambers, & Burnham, , American Party Systems, pp. 90–116 Google Scholar.

²⁸ Burnham, , “Party Systems and the Political Process,” pp. 292–295 Google Scholar. See also Dumond, Dwight L., Antislavery Origins of the Civil War in the United States (Ann Arbor, Mich.: University of Michigan Press, 1959)Google Scholar; Nichols, Roy F., The Stakes of Power, 1845–1877 (New York: Hill and Wang, 1961)Google Scholar.

²⁹ Nichols, Roy F., The Disruption of American Democracy (New York: Free Press, 1967)Google Scholar.

³⁰ Burnham, , “Party Systems and the Political Process,” pp. 295–296 Google Scholar; Beard, Charles A. and Beard, Mary, The Rise of American Civilization (New York: Macmillan, 1927), pp. 52–122 Google Scholar.

³¹ See Stampp, Kenneth, The Era of Reconstruction, 1865–1877 (New York: Alfred A. Knopf, 1965)Google Scholar; Randall, James G. and Donald, David, The Civil War and Reconstruction (Boston: Heath, 1961)Google Scholar.

³² See McCloskey, Robert, American Conservatism in the Age of Enterprise, 1865–1910 (Cambridge, Mass.: Harvard University Press, 1951)CrossRefGoogle Scholar; Hofstadter, Richard, The American Political Tradition and the Men Who Made It (New York: Random House, 1948), pp. 164—205 Google Scholar; Fine, Sidney, Laissez Faire and the General-Welfare State: A Study of Conflict in American Thought, 1865–1901 (Ann Arbor, Mich.: University of Michigan Press, 1956)Google Scholar.

³³ See Faulkner, Harold U., Politics, Reform, and Expansion (New York: Harper & Row, 1959)Google Scholar; Hicks, John, The Populist Revolt (Minneapolis: University of Minnesota Press, 1931)Google Scholar.

³⁴ See Higham, John, Strangers in the Land: Patterns of American Nativism, 1860–1925 (New York: Atheneum, 1970)Google Scholar.

³⁵ Burnham suggests that this result was accomplished by the withdrawal from political participation of the urban working class, creating a political void which was filled elsewhere by the rise of socialist parties. Burnham, , “Party Systems and the Political Process,” p. 301 Google Scholar. But see Hartz, Louis, The Liberal Tradition in America (New York: Harcourt, Brace & World, 1955)Google Scholar.

³⁶ See Silva, Rum, Religion, and Votes.

³⁷ See Leuchtenberg, William, Franklin D. Roosevelt and the New Deal (New York: Harper & Row, 1963)Google Scholar.

³⁸ See Lowi, Theodore, The End of Liberalism (New York: Norton, 1969)Google Scholar.

³⁹ Scammon, Richard and Wattenberg, Benjamin, The Real Majority (New York: Coward, McCann & Geoghegan, 1970)Google Scholar; Phillips, Kevin, The Emerging Republican Majority (New Rochelle, New York: Arlington House, 1969)Google Scholar.

⁴⁰ See Lubell, Samuel, The Hidden Crisis in American Politics (New York: W. W. Norton & Co., 1970)Google Scholar; Weisberg, Herbert and Rusk, Jerrold, “Dimensions of Candidate Evaluation,” American Political Science Review, 64 (12, 1970), 1167–1185 CrossRefGoogle Scholar. But see Sundquist, “Whither the American Party System?,” and Dynamics of the Party System. Rather than a realignment, Sundquist anticipates a reversal of the current trend toward party disintegration and a new strengthening of party attachments along the lines of cleavage established in the New Deal era. As such, Sundquist seems to have in mind what Pomper would call a “converting” era. See Pomper, “Classification of Presidential Elections.”

⁴¹ See, for example, Levy, Leonard, ed., American Constitutional Law: Historical Essays (New York: Harper & Row, 1966), pp. 1–9 Google Scholar; Scigliano, Robert, The Supreme Court and the Presidency (New York: Free Press, 1971), p. viii Google Scholar. See also Schubert, Glendon, Judicial Policy-Making (Glenview, Illinois: Scott, Foresman, 1965), pp. 131–157 Google Scholar.

⁴² Adamany, “Legitimacy, Realigning Elections, and the Supreme Court,” is really more suggestive than it is rigorously empirical.

Sheldon Goldman and Thomas P. Jahnige have briefly examined the coincidence between periods of electoral realignment and the Court-curbing periods identified by Stuart S. Nagel. They have found a distinct correlation. But such a focus is, by definition, concerned not with the Court's behavior but with the actions of others directed at the Court. Goldman, Sheldon and Jahnige, Thomas P., The Federal Courts as a Political System (New York: Harper & Row, 1971), pp. 261–268 Google Scholar; see also Nagel, Stuart S., The Legal Process from a Behavioral Perspective (Homewood, Ill.: Dorsey Press, 1969), pp. 260–279 Google Scholar.

Nagel and Wallace Mendelson have discussed the effect for Supreme Court policy making of party differences between Congress and the Court, but their work has not been guided by critical election theory. Nagel, , The Legal Process, pp. 245–259 Google Scholar; Mendelson, , “Judicial Review and Party Politics,” Vanderbilt Law Review, 12 (03, 1959), 447–457 Google Scholar.

⁴³ Burnham, , Critical Elections, p. 10, fn. 15Google Scholar.

⁴⁴ See, for example, Fletcher v. Peck, 6 Cranch 87 (1810); McCulloch v. Maryland, 4 Wheaton 316 (1819).

⁴⁵ See, for example, Marbury v. Madison, 1 Cranch 137 (1803); Cohens v. Virginia, 6 Wheaton 264 (1821).

⁴⁶ See, for example, Dartmouth College v. Woodward, 4 Wheaton 518 (1819); Sturges v. Crowninshield, 4 Wheaton 122 (1819).

⁴⁷ See, for example, Gibbons v. Ogden, 9 Wheaton 1 (1824); Brown v. Maryland, 12 Wheaton 419 (1827); McCulloch v. Maryland, 4 Wheaton 316 (1819).

⁴⁸ See, for example, Fletcher v. Peck, 6 Cranch 87 (810); Martin v. Hunter's Lessee, 1 Wheaton 304 (1816); Cohens v. Virginia, 6 Wheaton 264 (1821).

⁴⁹ See, for example, Fletcher v. Peck, 6 Cranch 87 (1810); Dartmouth College v. Woodward, 4 Wheaton 518 (1819); Sturges v. Crowninshield, 4 Wheaton 122 (1819).

⁵⁰ Differences of personality and temperament as much as differences of politics may account for the enmity which existed between the Court headed by Marshall and the executive branch headed by Jefferson. With the removal of Jefferson from the White House and thus the removal of the personality factor, the Marshall Court and the succeeding Republican presidents got along quite well. See Ellis, Richard, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford, 1971)Google Scholar; Kelly, Alfred and Harbison, Winfred, The American Constitution: Its Origin and Development (New York: Norton, 1970), pp. 202–247 Google Scholar; Boyd, Julian, “The Chasm That Separated Thomas Jefferson and John Marshall,” in Essays on the American Constitution, ed. Dietze, Gottfried (Englewood Cliffs, New Jersey: Prentice-Hall, 1964), pp. 3–20 Google Scholar.

⁵¹ See, for example, Mayor of New York v. Miln, 11 Peters 102 (1837); Charles River Bridge Co. v. Warren Bridge Co., 11 Peters 420 (1837); Bank of Augusta v Earle, 13 Peters 519 (1839).

⁵² See, for example, Dred Scott v. Sandford 19 Howard 393 (1857).

⁵³ For example, Civil Rights Cases, 109 U. S. 3 (1883).

⁵⁴ Knox v. Lee, 12 Wallace 457 (1871); Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (1890).

⁵⁵ For example, United States v. E. C. Knight Co., 156 U. S. 1 (1895); Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429 (1895); Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601 (1895). See Westin, Alan, “The Supreme Court, The Populist Movement and The Campaign of 1896,” Journal of Politics, 15 (02, 1953), 3–41 CrossRefGoogle Scholar.

⁵⁶ For example, DeLima v. Bidwell, 182 U. S. 1 (1901); Downes v. Bidwell, 182 U. S. 244 (1901); Dorr v. United States, 195 U. S. 138 (1904); Rasmussen v. United States, 197 U. S. 516 (1905).

⁵⁷ For example, Smyth v. Ames, 169 U. S. 466 (1898); Lochner v. New York, 198 U. S. 45 (1905); Coppage v. Kansas, 236 U. S. 1 (1915).

⁵⁸ For example, Schechter Bros. Poultry Corp. v. United States, 295 U. S. 495 (1935); United States v. Butler, 297 U. S. 1 (1936); Carter v. Carter Coal Co., 298 U. S. 238 (1936).

⁵⁹ See Stern, Robert, “The Problems of Yesteryear—Commerce and Due Process,” Vanderbilt Law Review, 4 (04, 1951), 446–468 Google Scholar; McCloskey, Robert, “Economic Due Process and the Supreme Court: An Exhumation and Reburial,” The Supreme Court Review (1962) pp. 34–62 Google Scholar.

⁶⁰ See Kurland, Philip B., Politics, the Constitution, and the Warren Court (Chicago: University of Chicago Press, 1970)Google Scholar; Miller, Arthur S., The Supreme Court and American Capitalism (New York: Free Press, 1968)Google Scholar; Lowi, The End of Liberalism.

⁶¹ While I have examined the relation between judicial decision making and the party systems during maintaining periods of stable partisan competition, Adamany has focused upon the relationship between the Court and the elected branches during realignment phases. Adamany, , “Legitimacy, Realigning Elections, and the Supreme Court,” pp. 820–843 Google Scholar. His historical survey tends to substantiate the thesis advanced here, although the conclusions which he draws from his analysis differ from my own.

⁶² To be perfectly precise, the time span from Marshall's appointment on January 31, 1801, to Warren's retirement on June 23, 1969, is 168 years, 4 months, and 23 days.

⁶³ Indeed, Sellers, “The Equilibrium Cycle,” classifies the two elections of Washington as “deviating” elections, a classification which poses certain logical difficulties.

⁶⁴ See Steamer, Robert, The Supreme Court in Crisis: A History of Conflict (Boston: University of Massachusetts Press, 1971), pp. 3–23 Google Scholar.

⁶⁵ Appendices fully elaborating the data base are available from the author upon request.

⁶⁶ More sophisticated statistical techniques such as scatter-diagrams could, of course, be employed to make the same point. At this very initial level of analysis, however, I have opted to keep the statistics as simple as possible. Refinements can, of course, always be introduced later.

⁶⁷ Candor compels the admission that there is a general lack of dispersion of cases across the four critical periods. As an examination of the appendices demonstrates, the majority of them occurred during the 1928–1936 realignment. While the New Deal's difficulties with the Court were extraordinary, however, one must remember that the Court's opportunities to exercise its power of judicial review were enhanced by a burgeoning population, the vast increase in congressional legislation, and the Court's expanding docket. See Bickel, Alexander, The Caseload of the Supreme Court: And What, If Anything, To Do About It (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1973)Google Scholar. If one discounts the number of judicial review cases by the total incidence of opportunities presented for the exercise of the power of judicial review, the New Deal era appears to be less unique, though it remains one of great judicial activity.

⁶⁸ 271 U.S. 52 (1926).

⁶⁹ Dahl, , “Decision-Making,” pp. 286–291 Google Scholar. I have not, however, adopted Dahl's distinction between cases dealing with major policy issues and those dealing with minor, because I am persuaded by criticisms of his attempts in other areas of analysis to distinguish between important and unimportant policy matters as definitional sleight of hand subject to serious theoretical reservations. See Bachrach, Peter and Baratz, Morton, “Decisions and Nondecisions: An Analytical Framework,” American Political Science Review, 57 (09, 1963), 641–652 CrossRefGoogle Scholar; and “Two Faces of Power,” American Political Science Review, 56 (12, 1962), 947–952 CrossRefGoogle Scholar. But see Dahl, Robert, Who Governs? (New Haven, Conn.: Yale University Press, 1961)Google Scholar. For purposes of this study, rejection of such a distinction does sacrifice historical nuance. But, as my conclusions indicate, I do not mean to discourage systemic, historical analysis oft he Court—indeed, quite the opposite—and I hope that scholars who undertake such studies will have better luck than has Dahl in operationalizing definitions of “major” and “minor” policies.

⁷⁰ See note 65.

⁷¹ 3.1/1.2 = 2.58

⁷² For a more extensive discussion of the time lag between the coming of new party eras and the restructuring of Supreme Court policy making, see Dahl, , Pluralist Democracy, pp. 154–170 Google Scholar.

⁷³ The fifth appointment to the Court made after the beginning of the realignment period, 1888, was made in 1894; thus there is no “lag period.” Many students of the Court have observed that in its decision making during this period the Court actually seemed to be anticipating the election returns. This pattern of recruitment suggests why.

⁷⁴ See note 65.

⁷⁵ See note 65.

⁷⁶ Cortner, Richard and Lytle, Clifford, eds., Modern Constitutional Law (New York: Free Prsss, 1971), p. 12 Google Scholar.

⁷⁷ See note 22.

⁷⁸ See, for example, Kurland, , Politics, the Constitution, and the Warren Court, p. 26 Google Scholar. This analysis has, of course, been limited to cases involving the constitutionality of federal statutes for purposes of comparability with Dahl.

⁷⁹ Jackson, Robert, The Struggle for Judicial Supremacy (New York: Knopf, 1941), pp. ix–x Google Scholar.

⁸⁰ Indeed, if one uses Sellers's categorization, five of the six Presidents mentioned by Jackson have come to office on the crest of realigning elections. See Sellers, “The Equilibrium Cycle.” In this regard, President Nixon's attacks upon the Court's policy making and his attempts to change it while in office are yet other intriguing data possibly indicative of contemporary electoral realignment. See also Lockard, Duane, The Perverted Priorities of American Politics (New York: Macmillan, 1971), pp. 234–235 Google Scholar.

⁸¹ See note 15.

⁸² 6 Peters 515 (1832).

⁸³ See Wasby, Stephen, The Impact of the United States Supreme Court: Some Perspectives (Homewood, Ill.: Dorsey Press, 1970.)Google Scholar

⁸⁴ The forthcoming, multivolume Oliver Wendell Holmes Devise History of the Supreme Court of the United States, under the general editorship of Professor Paul Freund, may greatly advance this task. Given the lawyerly orientation of most of the authors, however, there is little reason for encouragement that what is here advocated will either be attempted or achieved. Indeed, the first two volumes to appear, while comprehensive, have received mixed reactions. See Goebel, Julius Jr., Antecedents and Beginnings to 1801, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Vol. I (New York: Macmillan, 1971)Google Scholar, reviewed by Horowitz, Morton, Harvard Law Review, 85 (03, 1972), 1076–1082 CrossRefGoogle Scholar; Fairman, Charles, Reconstruction and Reunion 1864–88: Part One, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Vol. VI (New York: Macmillan, 1971)Google Scholar, reviewed by Keller, Morton, Harvard Law Review, 85 (03, 1972), 1082–1088 CrossRefGoogle Scholar.

⁸⁵ For example, Hepburn v. Griswold, 8 Wallace 603 (1870); Hammer v. Dagenhart, 247 U.S. 251 (1918); Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). Hammer and Bailey, however, might be seen as coming within a critical period, depending upon how one views the Wilson era. See Sellers, “The Equilibrium Cycle.”

⁸⁶ Dahl, “Decision-Making”; Black, Charles, The People and the Court: Judicial Review in a Democracy (New York: Macmillan, 1960)Google Scholar. An excellent critique of Black's work is to be found in Kurland, , Politics, the Constitution, and the Warren Court, pp. 34–39 Google Scholar. In spite of his criticisms, however, Professor Kurland also endorses bv implication the legitimation thesis. See Kurland, p. 56. But see Adamany, “Legitimacy, Realigning Elections, and the Supreme Court.”

⁸⁷ It must be emphasized that many questions in American politics and certainly many which reach the Supreme Court do not resolve themselves into clear-cut issues of a majority versus a minority. Rather, in a system of “minorities rule,” many political issues involve conflict between two, competing minorities. In such situations, however the Court strikes the balance, it will by definition advance the rights of a minority. See generally Dahl, Robert, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956)Google Scholar.

⁸⁸ 4 Wheaton 316 (1819).

⁸⁹ 1 Cranch 137 (1803).

⁹⁰ For example, United States v. Seeger, 380 U.S. 1 (1965); Oestereich v. Selective Service, 393 U.S. 233 (1968); Gutknecht v. United States, 396 U.S. 295 (1970); Breen v. Selective Service, 396 U.S. 460 (1970); Welsh v. United States, 398 U.S. 333 (1970).

⁹¹ Townsend v. Swank, 404 U.S. 282 (1972); Jefferson v. Hackney, 406 U.S. 535 (1972); Carleson v. Remillard, 406 U. S. 598 (1972).

⁹² For example, Daniel v. Paul, 395 U.S. 298 (19691: Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); Moose Lodge v. Irvis, 407 U.S. 163 (1972).

⁹³ But see Shapiro, Martin, Law and Politics in the Supreme Court (New York: Free Press, 1964), pp. 75–173, 253–327 Google Scholar; and The Supreme Court and Administrative Agencies (New York: Free Press, 1967)Google Scholar; Funston, Richard, ed., Judicial Crises: The Supreme Court in a Changing America (Cambridge, Mass.: Schenkman, 1974), p. v Google Scholar.

⁹⁴ Frankfurter, Felix, “John Marshall and the Judicial Function,” Harvard Law Review, 69 (12, 1955), 217–238 CrossRefGoogle Scholar.

⁹⁵ Kurland, , Politics, the Constitution, and the Warren Court, pp. 17–18, 22 Google Scholar. See also Schubert, , Judicial Policy-Making, pp. 145–157 Google Scholar.

⁹⁶ See Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934).

⁹⁷ See also Bickel, , The Least Dangerous Branch, pp. 23–28 Google Scholar; Wechsler, “Neutral Principles.”

⁹⁸ Bickel, , The Least Dangerous Branch, pp. 25–26 Google Scholar.

⁹⁹ Heren, Louis, The New American Commonwealth (New York: Harper & Row, 1968), p. 18 Google Scholar.

¹⁰⁰ Holmes, Oliver Wendell, Collected Legal Papers (New York: Harcourt, Brace and Howe, 1920), p. 139 Google Scholar.

¹⁰¹ Rostow, Eugene, The Sovereign Prerogative: The Supreme Court and the Quest for Law (New Haven, Conn.: Yale University Press, 1962), pp. 167–168 Google Scholar. Compare Rostow's analogy with Lowi, , The End of Liberalism, p. 314 Google Scholar:

In the United States the history of political theory since the founding of the Republic has resided in the Supreme Court. The future of political theory lies there too.

Thus, the legitimation thesis does not necessarily depend, as Professor Adamany claims, upon popular acceptance of the myth of a self-interpreting Constitution. See Adamany, , “Legitimacy, Realigning Elections, and the Supreme Court,” p. 797 Google Scholar. It is for the Court to teach—to convince—that the policies of the dominant coalition are within the broad mainstream of American constitutional values.

¹⁰² See Black, , The People and the Court, p. 53 Google Scholar.

¹⁰³ Oregon v. Mitchell, 400 U.S. 112 (1970).

¹⁰⁴ Holmes, , Legal Papers, p. 270 Google Scholar.

¹⁰⁵ See Arnold, Thurman, The Symbols of Government (New Haven, Conn.: Yale University Press, 1935)Google Scholar; Corwin, Edward S., “The Constitution As Instrument And As Symbol,” American Political Science Review, 30 (12, 1936), 1072–1085 CrossRefGoogle Scholar; Lerner, Max, “Constitution and Court as Symbols,” Yale Law Journal, 46 (06, 1937), 1291–1319 CrossRefGoogle Scholar. One of the more interesting aspects of these studies of the symbolic functions of the Court and the Constitution is their dates of publication, no doubt owing largely to the Court's travails with the New Deal. Since the 1930s the study of the symbolic uses of constitutional adjudication appears to have fallen into desuetude. For example, Edelman's, Murray admirable analysis of Politics as Symbolic Action (Chicago: Markham, 1971)Google Scholar contains not even a passing reference to the judicial process.

¹⁰⁶ Bryce, James, The American Commonwealth, 2nd ed., rev. (New York: Macmillan, 1891), I, 348 Google Scholar.

¹⁰⁷ Jackson, Robert, The Supreme Court in the American System of Government (New York: Harper & Row, 1955), p. 81 Google Scholar.

¹⁰⁸ Holmes, , Legal Papers, pp. 292–293 Google Scholar.