Once upon a time . . .the answer

[Keith E. Whittington]

I suspect the number of federal judges and justices in American history who
have thought, let alone felt free to claim, that they should use the courts to
advance the (electoral, organizational or policy?) aims of a political party
has been vanishingly small -- and was more common in the late eighteenth and
nineteenth centuries than in the twentieth or twenty-first.  But what it means
in particular practice to "enforce the abstract rule of law," especially in
relation to constitutional interpretation, has often been
ideologically/politically freighted and broken along partisan and/or factional
lines (Federalists vs. Jeffersonians, Whigs vs. Democrats, neoliberal
Republicans vs. progressive Democrats, Reaganite Republicans vs. liberal
Democrats).  Unsurprisingly, presidents who care about constitutional/judicial
outcomes (and not all do) pay attention to that, and generally get the kinds of
justices they want (subject to confirmation constraints and the
multidimensionality of the decision).

Keith Whittington

Elizabeth Dale wrote:

>  it doesn't necessarily clear up when, or whether, judges and
> justices began to feel free to claim that they could or should use the
> courts to advance the aims of a party, rather than, say, enforce an
> abstract rule of law.
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