Ruth Bloch Rubin & Gregory Elinson, Anatomy of Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954-1958, 43 Law & Soc. Inquiry 944 (2018).
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Exploiting a range of archival materials, we argue that state‐level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region's white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region's response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South's embrace of popular constitutionalism post‐Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.
Gregory Elinson, Judicial Partisanship and the Slaughterhouse Cases: Investigating the Relationship Between Courts and Parties, 31 Stud. Am. Pol. Dev. 24 (2017).
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Scholars of judicial behavior have persuasively demonstrated that parties profoundly influence the elaboration of judicial doctrine, but have paid more limited attention to understanding how courts can transform the content of party agendas. In this article, I argue that judges can work to deliberately define the issue positions adopted by the political parties with which they are affiliated. I contend that judges can, like other political actors, use the tools of their office to further explicitly partisan goals. Although they may employ traditional modes of legal reasoning, judges may nevertheless craft their decisions in ways that prioritize certain party principles over others, interpret the law in ways that knit together the beliefs of divergent factions within their party coalition, articulate principles to guide the party's incorporation of new issues, and, in some instances, begin to outline a coherent ideological vision for the party. I develop this theory through a close examination of the Slaughterhouse Cases, regularly cited as a core building block of the American constitutional canon.
Robert A. Kagan & Gregory Elinson, Constitutional Litigation in the United States, in Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court (Ralf Rogowski & Thomas Gawron eds., 2d ed. 2016).