1. Dunne, Finley Peter, Mr. Dooley at His Best, ed. Ellis, Elmer (New York: Scribner's, 1938), pp. 76–77.Google Scholar

2. White, G. Edward, The American Judicial Tradition (New York: Oxford University Press, 1976), p. 252.Google Scholar That fact, White believes, makes the judiciary vulnerable.

3. Dahl, Robert A., “Decision-Making in a Democracy: The Role of the Supreme Court as a National Policy-Maker,”Journal of Public Law 6 (1957): 279, 285.Google Scholar

4. Jackson, Robert H., The Struggle for Judicial Supremacy (New York: Vintage Books, 1941), p. 315.Google Scholar

5. For a review of the literature with a focus on its relevance for judicial studies, see Funston, Richard, “The Supreme Court and Critical Elections,” American Political Science Review 69 (1975): 795, 797–803 and sources cited thereinCrossRefGoogle Scholar; Silbey, Joel H., Bogue, Allan G., and Flanigan, William H., The History of American Electoral Behavior (Princeton: Princeton University Press, 1978), particularly the introductory essays.Google Scholar

6. See Clubb, Jerome H., Flanigan, William H., and Zingale, Nancy H., Partisan Realignment: Voters, Parties, and Government in American History (Beverly Hills, CA: Sage, 1980), pp. 254–69Google Scholar, and Argersinger, Peter H. and Jeffries, John W., “American Electoral History: Party Systems and Voting Behavior” in Research in Micropolitics, ed. Long, Samuel, vol. 1 (Greenwich, CT: JAI Press, Inc., 1986)Google Scholar, who note on p. 5 that 21 of 39 presidential elections from 1824 to 1976 have been labeled as critical by some study.

7. See Burnham, Walter Dean, Critical Elections and the Mainsprings of American Politics (New York: W. W. Norton & Company, Inc., 1970), p. 1Google Scholar; Burnham, Walter Dean, Clubb, Jerome M., and Flanigan, William H., “Partisan Realignment: A Systemic Perspective,” in Silbey, Bogue, and Flanigan, History of American Electoral Behavior, p. 64Google Scholar; Pomper, Gerald, “Classification of Presidential Elections,” Journal of Politics 29 (1967): 535, 562CrossRefGoogle Scholar; Sundquist, James L., Dynamics of the Party System (Washington, D.C.: The Brookings Institution, 1983), p. 48Google Scholar; and Silbey, , Bogue, , and Flanigan, , History of American Electoral Behavior, p. 36.Google Scholar

8. Dahl, , “Decision-Making in a Democracy: The Role of the Supreme Court as a National Policy-Maker,” pp. 283–84.Google Scholar

9. Burnham, , Critical Elections and the Mainsprings of American Politics, pp. 9–10Google Scholar. “It was far from coincidence,” Burnham elsewhere remarks, “that the Supreme Court reached its height as an economic policy maker in a period–1890–1937– which almost precisely covers the period of the partisan alignment of 1894–1932, or that this role became untenable after the next realignment” (“Party Systems and the Political Process,” in Chambers, William Nisbet and Burnham, Walter Dean, The American Party Systems: Stages of Political Development, 2d. ed. [New York: Oxford University Press, 1975], p. 289).Google Scholar

10. See Samuel P. Hays, “Political Parties and the Community-Society Continuum,” Donald E. Stokes, ?“Parties and the Nationalization of Electoral Forces,” and Theodore J. Lowi, “Tarty, Policy, and Constitution in America,” all in Chambers and Burnham, American Party Systems.

11. Burnham, , Clubb, , and Flanigan, , “Partisan Realignment: A Systemic Perspective,” p. 49.Google Scholar

12. Ginsberg, Benjamin, “Elections and Public Policy,” American Political Science Review 70 (1976): 41, 44CrossRefGoogle Scholar. Ginsberg identifies the realigning eras as 1798–1800, 1826–36, 1852–60, 1874–80, 1892–96, and 1928–36. The first two were necessarily omitted from his analysis; the fourth marks the end of Reconstruction.

13. Ibid., pp. 48–49. Significant clusters of change did not occur after the elections of 1828 or 1896; Ginsberg did not anticipate that they would, since insurgent parties were defeated in those realigning eras. Such a view may undervalue the significance of Jackson's accession in the former year; in the latter, romper's distinction between converting and realigning elections is to the point. Ginsberg's conclusions have been challenged in part. See Neuman, W. Lawrence and Hicks, Alexander, “Public Policy, Party Platforms, and Critical Elections: A Reexamination,” American Political Science Review 71 (1977): 277CrossRefGoogle Scholar, and Ginsberg's rejoinder immediately following; Brady, David W., “Critical Elections, Congressional Parties, and Clusters of Policy Changes,” British Journal of Political Science 8 (1978): 79.CrossRefGoogle Scholar

14. Sinclair, Barbara Deckard, “Party Realignment and the Transformation of the Political Agenda: The House of Representatives, 1925–1938,” American Political Science Review 71 (1977): 940Google Scholar, and “The Policy Consequences of Party Realignment—Social Welfare Legislation in the House of Representatives, 1933–1954,” American journal of Political Science 22 (1978): 83.CrossRefGoogle Scholar

15. Jahnige, Thomas P., “Critical Elections and Social Change: Towards a Dynamic Explanation of National Party Competition in the United States,” Polity 3 (1971): 465CrossRefGoogle Scholar, identifies the basic eras as 1789–1828, 1828–1860, 1860–1896, 1896–1932, and 1932–1968(?). Adamany, David, “Legitimacy, Realigning Elections, and the Supreme Court,” Wisconsin Law Review 1973 (1973): 790Google Scholar, sees transitions at 1800, 1828, 1860, and 1932.

16. See Grimes, Alan P., Democracy and the Amendments to the Constitution (Lexington, MA: Lexington Books/D.C. Heath and Company, 1978), pp. 158–62Google Scholar; Nagel, Stuart S., “Court-Curbing Periods in American History,” Vanderbilt Law Review 18 (1965): 925Google Scholar; Handberg, Roger and Hill, Harold F. Jr., “Court Curbing, Court Reversals, and Judicial Review: The Supreme Court versus Congress,” Law and Society Review 14 (1980): 309, 317CrossRefGoogle Scholar, but also Adamany, David, ‘The Supreme Court's Role in Critical Elections,” in Realignment in American Politics: Toward a Theory, ed. Campbell, Bruce A. and Trilling, Richard J. (Austin, TX: University of Texas Press, 1980), p240Google Scholar; Funston, , ‘The Supreme Court and Critical Elections,” but also Paul Allen Beck, “Critical Elections and the Supreme Court: Putting the Cart after the Horse,” American Political Science Review 70 (1976): 930Google Scholar, and Canon, Bradley C. and Ulmer, S. Sidney, “The Supreme Court and Critical Elections: A Dissent,” American Political Science Review 70 (1976): 1215CrossRefGoogle Scholar; Caldeira, Gregory A. and Mccrone, Donald J., “Of Time and Judicial Activism: A Study of the U. S. Supreme Court, 1800–1973” in Supreme Court Activism and Restraint, ed. Halpern, Stephen C. and Lamb, Charles M. (Lexington, MA.: Lexington Books/D.C. Heath and Company, 1982), pp. 113–20.Google Scholar

17. Burnham, , Clubb, , and Flanigan, , “Partisan Realignment: A Systemic Perspective,” p. 49.Google Scholar

18. Schmidhauser, John R. has essayed this formidable task. For the results, see his Constitutional Law in American Politics (Monterey, CA.: Brooks/Cole Publishing Co., 1984)Google Scholar, especially chap. 11 and the tables on pp. 114–15,176–77,253–54, and 427.

19. President Lincoln appointed five justices to what was then a ten-member Court; these five became a majority when Justice Catron died and his seat was abolished.

20. 300 US. 379 (1937), overruling Adkins v. Children's Hospital, 261 U.S. 525 (1923)Google Scholar and Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).Google Scholar

21. Pritchett, C. Herman characterizes the Court as “reorganized” as of 1937Google Scholar. “The Coming of the New Dissent: The Supreme Court 1942–1943,” University of Chicago Law Review 11 (1943): 49, 49–50.CrossRefGoogle Scholar

22. Decisions are made, and new Justices are sometimes appointed, in the middle of a year. Since I classify Parrish (1937) as the beginning of a new, stable era, I mark the end of the reconstituting era in 1936. I do, however, classify cases decided in 1937 but before Parrish as falling within the reconstituting period.

23. The only clearly “deviating” president to choose a majority of the Court was Dwight Eisenhower. Two of his appointments were Warren and Brennan, however, who reinforced a liberal trend that had waned with some of Truman's appointments. It does not seem realistic, therefore, to consider the Eisenhower interval as terminating one stable era on the Court and initiating a new and different one.

24. See notes 5 and 16.

25. Canon, and Ulmer, , “The Supreme Court and Critical Elections: A Dissent,” pp. 1217–18.Google Scholar

26. United States Congress, Senate, The Constitution of the United States of America: Analysis and Interpretation, S. Doc. 99–16, 99th Cong., 1st sess., 1987, pp. 1885–1912, and 1990 Supplement, S. Doc. 101–36, 101st Cong., 2d sess., 1991, pp. 239–42.

27. See notes 9 and 16.

28. Funston actually starts counting from 1801, but in order to examine what was invalidated in each case, we must start the period in 1789 to include the section of the Judiciary Act voided in Marbury v. Madison, 1 Cranch (5 U. S.) 137 (1803).Google Scholar

29. Because the critical era of the New Deal is the only one in which the realigning period does not end with the accession of a new president and congressional majority, the statutes invalidated in these twelve cases, all passed during 1933–1936, were, technically, enacted during the realigning period rather than during the newly emergent stable period. Just as the reconstituting period of this time effectively ended in 1937, however, from the perspective of policymaking the realigning period really ended in March of 1933.

30. See Funston, , “The Supreme Court and Critical Elections,” pp. 798–99.Google Scholar

31. See Schmidhauser, , Constitutional Law in American Politics, pp. 613–14.Google Scholar

32. See, for example, Beck, Paul Allen, ‘The Electoral Cycle and Patterns of American Politics,” British Journal of Political Science 9 (1979): 129CrossRefGoogle Scholar, and Clubb, Flanigan, and Zingale, Partisan Realignment.

33. 347 U. S. 483 (1954). In a parallel analysis, Walter Dean Burnham maintains that “there is much reason for subdividing the fifth party system into two parts at about the year 1950.” Burnham also finds a basic shift in the character of the Civil War party system occurring about 1874. Burnham, , “Party Systems and the Political Process,” pp. 297, 303.Google Scholar

34. 12 Wallace (79 U. S.) 457 (1871), reversing Hepburn v. Griswold, 8 Wallace (75 U. S.) 603 (1870).Google Scholar

35. Schmidhauser, , Constitutional Law in American Politics, p. 429.Google Scholar

36. The actual boundary between periods here is Justice Stevens's accession; 1976 cases in which he did not participate have been included in the number for 1969–1975.

37. Barnum, David G., ‘The Supreme Court and Public Opinion: Judicial Decision Making in the Post-New Deal Period,” Journal of Politics 47 (1985): 652, 652–53.CrossRefGoogle Scholar

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39. Ibid., pp. 587–90, 610.

40. Ibid., p. 610 (emphasis added).

41. Ibid., pp. 613, 611, 614, 612.

42. By one count, 30 of 73 cases of judicial review from 1837 to 1964 concerned issues salient to critical elections. (I count 81 cases during the period, but that discrepancy does not alter the essential point.) Gates, John B., “The American Supreme Court, Critical Elections, and the Invalidation of State and Federal Policies, 1837–1964: Supreme Court Policymaking during Periods of Major Change in the Political Party System’ (Ph.D. diss., University of Maryland, 1985), pp. 117–371passim.Google Scholar

43. Lowi, Theodore J., The End of Liberalism, 2d. ed. (New York: W. W. Norton & Company, Inc., 1979).Google Scholar

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54. Hepburn v. Griswold, 8 Wallace (75 U.S.) 603 (1870) in the Legal Tender Cases, 12 Wallace (79 U.S.) 457 (1871); Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895) in South Carolinav. Baker, 485 U.S. 505 (1988); Matter of Heff, 197 U.S. 488 (1905) in United States v. Nice, 241. U.S. 591 (1916); Newberry v. United States, 256 U. S. 232 (1921) in United States v. Classic, 313 U. S. 299 (1941); Adkins v. Children's Hospital, 261 U. S. 525 (1923) in West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937); O'Callahan v. Parker, 395 U.S. 258 (1969) in Solorio v. United States, 483 U.S. 435 (1987); National League of Cities v. Usery, 426 U.S. 833 (1976) in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).

55. Chisholm v. Georgia, 2 Dallas (2 U.S.) 419 (1793) by the Eleventh Amendment; Dred Scott v. Sandford, 19 Howard (60 U.S.) 393 (1857) by the Thirteenth, Fourteenth, and Fifteenth Amendments; Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 and 158 U.S. 601 (1895) by the Sixteenth Amendment; and Oregon v. Mitchell, 400 U. S. 112 (1970) by the Twenty-sixth Amendment.

56. Abraham, Henry J., The Judicial Process, 4th. ed. (New York: Oxford University Press, 1980), p. 351.Google Scholar In his fifth edition (1986, p. 349), Abrahamabandons the count and merely states that this phenomenon has occurred “on several, although not numerous, occasions.”

57. For example, Fisher, Louis, Constitutional Dialogues: Interpretation as Political Process (Princeton: Princeton University Press, 1988)CrossRefGoogle Scholar; Murphy, Walter F., “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter,” Review of Politics 48 (1986): 401.CrossRefGoogle Scholar

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59. See Mason, Alpheus Thomas, The Supreme Court: Palladium of Freedom (Ann Arbor, MI: University of Michigan Press, 1962), p. 62.Google Scholar