Putting the Constitution Above Party: The Modern Supreme Court, Jurisprudential Policy Alliances, and Institutional Orders

Law and American Political Development scholars rely on “regime theory” to understand constitutional politics. This paper offers the first sustained historical critique of regime theory. This approach posits that same-party Supreme Court justices function as the agents of elected elites, writing into law the preferences of the “dominant national coalition” that placed them on the Court. Drawing on archival and overlooked primary source materials, this paper argues that regime theory struggles to explain presidential, party, and judicial politics from the New Deal forward. The paper's second goal is developing an alternative historical framework: jurisprudential policy alliances and a measurement strategy. After delineating competing policy alliances’ emergence and development prior to the New Deal, the paper simultaneously tests regime theory and jurisprudential policy alliances against the evidence from FDR to George W. Bush. The policy alliances approach correctly predicts the justices’ orientation on the Court in 30 of 35 confirmations; regime theory, in 16 of 35. The paper concludes with an analytic discussion that summarizes the limitations of regime theory, suggests a revamped political development approach to Supreme Court politics that places the justices at the center, and charts avenues for theory-building and future empirical research.