Sawyer Law and Politics Program presents: Stephan Stohler

Stephan Stohler, JD, PhD at Rockefeller College, University at Albany, Department of Political Science

Judges frequently alter their positions on important legal questions and in ways that run counter to the wishes of the political coalitions which appointed them. This type of judicial behavior poses a significant challenge for ``regime theory,'' which holds that governing coalitions appoint judges to uphold their political and ideological commitments in the judiciary. In this paper, I elaborate a new theoretical interpretation of regime theory, which explains when judges adhere to innovative legal doctrine. The interpretation, which I term ``deliberative regime theory,'' holds that judges act as partners, elaborating the evolving constitutional and legal positions of dominant political regimes.  On this view, judges will often adopt novel doctrinal positions and await democratic endorsement from the elected branches. To test this argument, I examine legislative, executive, and judicial interpretations of constitutional equality guarantees since the passage of the Civil Rights Act of 1964 and Voting Rights Act of 1965.  These data are broadly consistent with deliberative regime theory and further challenge existing theories of judicial supremacy, which hold that courts enjoy the final say on what the Constitution means