In Pushback, Dave Bridge asks a straightforward question that’s difficult to answer: Can success lead to failure? More specifically, can Supreme Court decisions ultimately harm the members of the dominant political coalition who appointed and approved the (ideologically aligned) justices who issued them? Bridge is writing in the tradition of the regime politics scholarship, and he does much to advance its cause.
He does so by carefully outlining how members of the minority party and the minority faction of the majority party seek to take advantage of unpopular Supreme Court decisions, like those of the 1950s dealing with communism. After outlining the assumptions of the “regime politics paradigm” in the first chapter, Bridge develops “observable expectations” for what might follow “a countermajoritarian” Supreme Court decision in chapter 2 (p. 31). He identifies three expectations: surface-level indicators (e.g., public opinion polls showing the unpopularity of a decision); a nonleading faction response (e.g., the introduction of court-curbing proposals by members of Congress who represent a minority faction of the majority party); and a minority party response, such as changes to “its focus, rhetoric, and strategy on issues raised by the Supreme Court” (p. 40). From there, Bridge searches for three types of pushback: grassroots, congressional, and electoral. In the next four issue-based chapters, he documents how opposition forces targeted unpopular Supreme Court rulings on school prayer, crime, busing, and abortion to delegitimize the Court and to undermine the New Deal coalition. In the last three areas, he finds evidence to support that the dominant political coalition suffered electorally due to politically divisive rulings from an ideologically aligned Court.
In Chapter 7, Bridge summarizes the lessons learned from those political battles. One, in particular, is worth highlighting. The “irony” and “tragedy” is that “liberal Democrats wanted the Supreme Court to hand down liberal decisions on social issues,” he writes. “When those very opinions came to pass, the fallout likely played a role in dethroning the Democratic Party from the seats of government” (p. 183). In Chapter 8, he examines four contemporary issues before the Court—good governance, Obamacare, same-sex marriage, and religious liberty—and assesses whether the lessons of the past are useful for today. The final chapter looks to the future and puts Bridge’s findings to the test. He does so by examining the political consequences of the 2022 Dobbs ruling. He argues that the atmosphere is ripe for Democrats to take electoral advantage of the Court’s decision uprooting Roe v. Wade and jeopardizing abortion rights.
One of the strengths of Bridge’s book lies in his decision to highlight a group within the New Deal coalition that typically attracts little attention, namely, Catholics. Too often those discussing the dissolution of the New Deal coalition focus on white southerners and highlight efforts by southern Democrats and Republicans to disrupt liberalism in hopes of constructing a conservative party under the GOP banner. Bridge also includes issues not defined by the politics of race, another frequent point of emphasis. For example, his first issue-focused chapter discusses school prayer and the Court’s ruling in Engel v. Vitale that public schools could not host prayers. As Bridge shows, that decision elicited an avalanche of scorn from devotees of different religions, including Roman Catholics. In discussing Engel, he uncovers significant grassroots and congressional pushback. Electoral pushback, however, is more difficult to show. In exploring why there were limited electoral consequences to such an unpopular decision, he makes an essential point about the reaction to Engel—namely, that many schools simply ignored it. And somewhat ironically this open violation of the Court’s order undercut organized political opposition to the decision. Why expend the time and resources necessary to overturn a Supreme Court ruling via constitutional amendment—which is unlikely to succeed—when the practical impact of that decision was quite limited?
Curiously, however, in this chapter we do not read anything about the most prominent Catholic at that time: President John F. Kennedy. Recall, in mid-September 1960, then-Senator Kennedy appeared before the Greater Houston Ministerial Association. He did so seeking to dispel concerns that he would be a mouthpiece for the Pope (or for the Catholic hierarchy in the United States) once in the White House. Those very accusations had helped sink the 1928 candidacy of Alfred E. Smith, the first Catholic presidential nominee of a major political party. In Houston, JFK outlined his belief “in an America where the separation of church and state is absolute—where no Catholic prelate would tell the President (should he be Catholic) how to act.” In making that statement, Kennedy explicitly referenced the Court’s 1947 decision in Everson, which placed significant constitutional limitations on aid to parochial schools. In turn, the Court’s decision in Engel v. Vitale—delivered less than two years later—could easily be interpreted as seeking to “confer legitimacy” on candidate Kennedy’s position—to borrow a phrase from Robert Dahl’s seminal 1957 article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” outlining a regime politics theory. Not surprisingly, in response to a question about congressional efforts to overturn Engel via constitutional amendment, now President Kennedy emphasized the need “to support the Supreme Court decisions even when we may disagree with them.”
I emphasize the absence of any discussion of Kennedy because presidents play an important role in the politics surrounding Supreme Court decisions. Consider two areas Bridge discusses where the Court later altered its doctrine: crime and busing. These were the very two issues President Richard Nixon concentrated on in constructing his policy toward the judiciary. Contrast that to his response to Roe, which was feeble at best. Indeed, it was not until the 1980s, as Bridge notes, that Republican presidents vigorously advocated for overturning Roe. And even then, the effort was an inconsistent one. Recall that President George H.W. Bush said he “welcomed” the 1992 Casey decision in which five of the eight Republican-appointed justices—including two of the three named by Ronald Reagan—refused to overturn that 1973 ruling. Of course, Kennedy’s defense of a liberal decision on school prayer was quite different than Nixon’s opposition to liberal ones on criminal procedure and busing. Nevertheless, the opinion of a popular president, even on an unpopular Supreme Court ruling, is bound to limit the effectiveness of the opposition forcing pushing back on Court decisions.
In Chapter 4, Bridge provides very compelling evidence that the Court consciously backtracked in deciding cases later in the 1960s in response to some of its earlier criminal procedure cases like Mapp (1962) and Miranda (1966). And it seemingly worked. According to Bridge, “cases such as Warden v. Hayden (1967) and Terry v. Ohio (1968) made the court’s jurisprudence more acceptable to conservatives, who in turn eased their criminal rights assault on the judiciary.” He rightfully adds: “Still, Nixon’s 1968 election was directly traceable to liberal crime decisions” (p. 108).
The final chapter of the book is both the most unusual and the most useful. To begin, it is organized differently than most of the other chapters in that it is structured in a question-and-answer format. More importantly, in it, Bridge applies the lessons of the reaction to the most politically salient “countermajoritarian” decisions of the 1950s, 1960s, and 1970s to the politics following the 2022 Dobbs decision. For Bridge, Dobbs holds out hope for Democrats. But there is also a lesson for them, one learned from Richard Nixon. Particularly on the issue of busing, Nixon didn’t mind losing in court as long as it allowed him to blame the federal judiciary for any disorder in schools under desegregation orders. In the same vein, Bridge notes that Democrats may not want to “preemptively fix the [abortion] problem.” That’s because, he continues, if abortion “is no longer a problem in a particular state or region, then voters of that state or region might disregard voting on the basis of abortion” (p. 261).
I end with a question. Are all unpopular decisions countermajoritarian? Bridge seems to think so. I’m not so sure. I am not convinced that we should focus on public opinion polls when considering whether the actions of today’s Court are consistent with majoritarianism. Rather, it is more appropriate to determine whether the political construction of the Supreme Court is consistent with majoritarianism, not whether a specific ruling on a divisive issue is. As Bridge points out, poll results may be extraordinarily unclear and change over time. As he writes about the reaction to the Court’s 2023 decision in Students for Fair Admissions, Inc. v. Harvard College, “unpacking public opinion on affirmation action is difficult… the wording of the questions seems to impact the results” (p. 226). He then suggests that affirmative action may very well be a case of “nonmajoritarian difficulty,” where “the American public has conflicting views on a very complex issue” (p. 227). While this may be true, Bridge might have also mentioned that referenda on affirmative action do not perform well, even in bright blue states like California. Recall that, in 2020, Californians voted down Proposition 16, which would have amended the state’s constitution to repeal a 1996 referendum (Proposition 209) banning the use of race, sex, or ethnicity in the public sector, including in public education. Notably, Proposition 16 was defeated by nearly 15% on the very same Election Day Democrat Joe Biden won the Golden State by nearly 30%. This result suggests that the Students for Fair Admissions decision may be neither countermajoritarian nor nonmajoritarian. It is simply hard to know.
To sum up, Dave Bridge has written an important book that makes a valuable contribution to the regime politics literature. His final chapter on the political landscape following Dobbs should be one that readers return to year after year to assess the predictive powers of his pushback theory.
