The Supreme Court's Third Century: Legitimacy, Bureaucracy, and Institutional Change

• Published in: Law & social inquiry 1989-01, Vol.14 (1), p.187-206
• Main Author: Grossman, Joel B.
• Format: Article
• Language: English
• Subjects: Courts; Judiciary; Review Essays; United States Supreme Court
• ISSN: 0897-6546; 1747-4469; 1545-696X
• DOI: 10.1111/j.1747-4469.1989.tb00584.x

A review essay on books by: Samuel Estreicher & John Sexton, Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process (New Haven, Conn: Yale U Press, 1986); David M. O'Brien, Storm Center: The Supreme Court in American Politics (New York, Norton, 1986); & Joseph Vining, The Authoritative and the Authoritarian (Chicago: U of Chicago Press, 1986 [see listings in IRPS No. 52]. Now entering its third century, the US Supreme Court has undergone significant changes since its formative years. Its size has increased & its internal structure & processes have changed toward bureaucratization & increasingly overloaded dockets. Most notably, Court jurisprudence has shifted from an agenda of protecting property rights to one of individual rights. Current debate focuses on the ability of the Court to handle the demands of a new role as well as intraorganizational transformations. In reassessing the modern role of the Court & the evolution of internal decision-making structures & standards, Estreicher & Sexton discuss the origins & effects of the Court's workload problems & examine workload reform proposals since the Freund Committee report in 1971. It is argued that the Court's major concern is in role definition, not excessive workload per se. A managerial model is suggested for the role of the Court justices, organizing the docket into three types of cases, & used to analyze all 201 cases that the Court agreed to hear, & the 1,860 paid cases it refused to hear, during the 1982 term. Oppositions to the managerial model are also discussed. O'Brien traces the Court's institutional evolution & explains its current political role & mode of operation, focusing on its increased bureaucratization. The decrease in the "collegiality" of decision-making processes among justices is also considered. Vining inquires into the sources of legitimacy & legal authority as well as the problem of bureaucratization, arguing that a degeneration of the legal institutions through bureaucratization challenges the traditional bases of legitimacy -- consent & understanding to be replaced by a basis of hegemony. Vining's argument is criticized for not effectively considering organizational maintenance problems & not recognizing some necessary functions of bureaucracy. Bureaucratization is discussed as a trend toward modernization that will help ease caseload problems; its effects on the internal dynamics, agenda, & integrity & legitimacy of the judiciary role of the