Long periods of great stability, in which one party dominates the institutions of government and exercises control over the broad outlines of public policy, have marked the history of American politics. These stable periods are separated by brief but intense periods of realignment, in which the old party system collapses and a new one is ushered in. The Supreme Court has both shaped and been shaped by these periods of realignment.
Political scientists and historians recognize that realignments of the party system occurred during the late 1820s, the 1850s, the 1890s, and the 1930s. These periods of upheaval brought about the decline of old parties and the emergence of new ones; or saw major changes in the leadership, constituency, and policy orientation of the existing major parties. During these periods of realignment extraordinary controversy swirled around the Supreme Court, and these periods demarcate the major transition points in Supreme Court history.
Critical realignments were caused by the American political system's inability to respond to long‐term demands for change on the part of large numbers of citizens. Such demands usually centered on government economic policy and typically cut across the existing lines of partisan division. The leadership of both parties had an incentive to suppress the building unrest or seek compromise solutions. If such pressures continued to build, however, moderates of both parties came under attack from the political extremes. Under the pressure of a series of triggering events—the slavery crisis in Kansas, the Panic of 1893, or the Great Depression of 1929, for example—the forces seeking change eventually overwhelmed the existing system, capturing one or both political parties, or bringing forth new parties. There followed a “critical election,” in which the stakes were particularly high; turnout and involvement was intense; the differences between the parties on issues were great; and the outcome was clear and decisive. The result was a realignment of the party system around new (or transformed) parties and the implementation of a new set of public policies by the newly elected coalition.
The key step in the realignment process was the capture of one of the major parties by extremist elements and a polarization of the party system. This polarization of the party system was followed within a short period by the critical election itself. Once the polarization began, realignment followed quickly.
In this polarization process, the Supreme Court played a major role. As the critical issue built in intensity, one or both sides expressed the issue in constitutional terms. In the slavery crisis, for example, both sides appealed to the Constitution to support their position on slavery in the territories. The Republicans suggested that the Constitution required the abolition of slavery in the territories; Southern Democrats took the opposite view and argued that the Constitution made it impossible for Congress to ban slavery in the territories. Similarly, in the New Deal period, the Republican Party claimed that Franklin Roosevelt's policies violated the Constitution. Once the issue became infused with a constitutional dimension, both sides turned to the Supreme Court; win or lose, a High Court decision on the issue made the moderate compromise positions less and less tenable.
Typically the Supreme Court was reluctant to take on the constitutional issue, preferring to accept moderate, compromise solutions and to defer to Congress. The reason is clear: the justices, appointed by the major parties over the decades before the realignment, themselves reflected the moderate political leadership of those parties (see Selection of Justices). For decades before Dred Scott v. Sandford (1857), for example, the Court simply ducked the slavery issue. In the same way, the justices in the pre‐New Deal party system found ways of sustaining most, if not all, federal economic legislation. The justices, however, were under the same pressures as their counterparts in the political system; the same triggering events that begin to polarize the parties prompted one or more of the justices to shift from the center to a more radical position. The result was a constitutional decision on the critical issue that vindicated the position of one or the other of the extremist groups. More importantly, such a decision made compromise on the critical issue impossible, since centrist positions were in effect declared unconstitutional as well. The Dred Scott decision, for example, declared unconstitutional not only the Republican position on slavery, but also Stephen Douglas's compromise concept of popular sovereignty. Abraham Lincoln masterfully exploited the weakness of Douglas's position after Dred Scott.
The Court's decision set in motion a process by which the extremist forces dominated the field, producing a critical election. The Supreme Court's decisions striking down New Deal legislation in 1935 and 1936, for example, resulted in both the strengthening of the anti‐New Deal forces in the Republican Party and the clear shift to the left by Roosevelt prior to the 1936 election. The critical election of that year settled the issue (or, in the 1850s case, made it clear that the issue could not be settled politically); the resulting partisan alignment then persisted for another generation or more, until the cycle repeated itself.
Critical issues are, by definition, issues of such magnitude or intensity that they cannot be resolved by the judicial branch. The Court's attempt to resolve the slavery issue in Dred Scott, like its attempt to block the New Deal, was in vain. The voice of the people, expressed in a critical election, eventually pulled the Supreme Court along with it. The Supreme Court, for example, switched immediately after the election of 1936 and placed its stamp of approval on the New Deal (see Court‐Packing Plan).
These realignment scenarios may lead to the conclusion that the Supreme Court follows the election returns. In these exceedingly rare critical realignments, this old adage has merit. It is, however, just as important to remember that few presidential elections center around an issue that involves the Supreme Court; most of the time, there are no election returns for the Supreme Court to follow. Thus, in general the Court is remarkably free to decide as it wishes. Of course, since the Court is recruited from and appointed by the dominant political parties, they are unlikely to oppose major policies of the national government. Still, only rarely do the people directly impose their views on the Court.
The relationship between the Court and the party system is no longer as clear as it once was. With major changes in the American political system since the New Deal, the pattern of stability and change inherent in the critical realignment model no longer seems to characterize American politics. The tremendous growth in the federal government and its activist role in economic and social policy have made it far more responsive to demands for change than it once was and have perhaps transformed the underlying basis of the realignment model. The result is a weakened party system given to gradual rather than dramatic transformations and an indirect relationship between the party system and the Court.
See also Political Parties.
Bibliography
- Walter Dean Burnham,
Critical Elections and the Mainsprings of American Politics (1970). - William Lasser, The Supreme Court in Periods of Critical Realignment,
Journal of Politics 47 (1985): 1174–1187. - James L. Sundquist,
Dynamics of the Party System: Alignment and Realignment of Political Parties in the United States ,rev. ed. (1983)
— William Lasser
